402118 HCBA Lawyer Cover Sept-Oct 2015_162816 Lawyer mar 06 Cover 8/25/15 4:00 pm page 1
LAWYERTHE HILLSBOROUGH COUNTY BAR ASSOCIATION TAmpA, FLORIdA | SEpTEmBER - OCTOBER 2015 | VOL. 26, NO. 1 402118 HCBA Lawyer Cover Sept-Oct 2015_162816 Lawyer mar 06 Cover 8/25/15 4:00 pm page 2
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THE HILLSBOROUGH COUNTY BAR ASSOCIATION LAWYER SEPT - OCT 2015 | VOL. 26, NO. 1
divisions features and events 16 3 2015-2016 HCBA BoArd of direCtors 9 YLd stAte CoUrt triAL 11 HCBA & YLd BoArds PLAN for tHe YeAr AHeAd 16 BreAkiNg good: PrioritiziNg ProfessioNALism iN AdvoCACY by Judges Samantha Ward and Lisa Campbell 18 off tHe reCord witH tHe HoN. CHArLeNe e. HoNeYweLL by Michael S. Hooker 22 stUdeNts’ resPoNsiBiLities 18 6 for imProviNg LAw sCHooLs by Roni A. Elias 5 tHe LABor of LAwYers Editor’s Message 24 HCBA sPeAkers’ BUreAU by Ed Comey 25 iNtrodUCiNg tHe 2015-2016 HCBA 6 most sUPer LAwYers Are seCtioN & Committee CHAirs sUPer meNtors 39 keviN d. JoHNsoN reCogNized HCBA President’s Message BY fLoridA BAr PresideNt by Carter Andersen 8 A New ANd exCitiNg YeAr 40 HCBA iNstALLAtioN of 2015-2016 for tHe YLd offiCers & direCtors YLD President’s Message 43 CoNgrAtULAtioNs to tHe by Dara Cooley 2014-15 HCBA BAr LeAdersHiP 10 CArter ANderseN iNstALLed iNstitUte CLAss As HCBA PresideNt As BAr 49 ABrAHAm LiNCoLN AwArd groUPs Look to tHe fUtUre Executive Director’s Message 59 ‘Let’s tALk LAw’ rAdio sHow by John F. Kynes kiCks off 12 tHe CHAiN of CUstodY 71 Ask-A-LAwYer set 40 State Attorney’s Message UNder CoNstrUCtioN by Mark A. Ober
about the Cover Tampa’s traditional ties to pirate life loom large at Raymond James Stadium, where the Buccaneers’ pirate ship is often the center of the action off the field. The Buccaneers joined the NFL in 1976, and Tampa Bay fans have been cheering for them ever since. This year, the covers for the Lawyer magazine will pay tribute to the sports teams and venues that make the Tampa Bay area such a great place to live, work, and play.
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seCtions 45 LessoN from tUomeY : 70 triAL & LitigAtioN seCtioN sHoPPers of LegAL sCHoLArsHiP-wiNNiNg essAY oPiNioNs BewAre Trial & Litigation Section 32 Health Care Law Section by Sienna Osta by Thomas (T.J.) Ferrante 72 Big tHiNgs to Come tHis YeAr e 46 giviNg YoUr ALL Workers’ Compensation Section Immigration & Nationality Section by Anthony V. Cortese by Maria del Carmen Ramos 48 PAteNt LAw BAsiCs series: Committees toP QUestioNs ANswered, PArt i 30 wiLL YoU HeLP Us rAise 26 JUdge JoHN BAdALAmeNti Intellectual Property Section tHe BAr oN AdULt JoiNs tHe seCoNd distriCt by Kristin Crall CiviCs edUCAtioN? Appellate Practice Section 50 2015 sCotUs ACAdemY Community Services Committee by Anthony J. Russo by Sacha Dyson NomiNees (roUNd 1) 28 tHis YeAr for tHe Labor & Employment Section 36 i HoPe YoU dANCe … CoLLABorAtive LAw seCtioN by Jamie Marcario Diversity Committee Collaborative Law Section by Victoria Cruz-Garcia by Jeremy E. Gluckman and 51 UNtiL deAtH do Us PArt Christine A. Hearn Marital & Family Law Section 52 workiNg to eNHANCe ANd by Kristi McCart BUiLd UPoN mvAC’s missioN 31 A defeCt witHoUt A defeNse: Military & Veterans Affairs Committee CHAPter 558 & CgL PoLiCies 58 two federAL CoUrts rULe oN by Matthew F. Hall and Construction Law Section stAtUte of LimitAtioNs wHiLe Colleen O’Brien by Michael G. Rothfeldt BArtrAm AwAits deCisioN Real Property, Probate & 56 wHAt is YoUr 32 CoveriNg tHe BAsiCs Trust Law Section ProfessioNALism QUotieNt? oN CYBer iNsUrANCe by Jennifer Lima-Smith Professionalism & Ethics Committee Corporate Counsel Section by Caroline Johnson Levine by John W. Bencivenga 60 PLAUsiBLe ALLegAtioN of AmoUNt iN CoNtroversY 68 YoUNg LAwYers AdvoCAte 34 fieLd drUg tests UNder for tAmPA BAY’s HeAvY sCrUtiNY is sUffiCieNt for removAL Securities Law Section HomeLess YoUtH Criminal Law Section by Daniel P. Dietrich Thirteenth Judicial Circuit by Matt Luka Pro Bono Committee 38 No ProBAte for vA 61 A Brief HistorY of by Cathy Kamm fidUCiArY ACCoUNts LegAL etHiCs Senior Counsel Section Elder Law Section by Thomas Newcomb Hyde by Jack M. Rosenkranz in everY issue 39 emiNeNt domAiN seCtioN 64 soLo & smALL firm 17 100 CLUB weLComes its memBers PrACtiCe - LiviNg sHiNgLe 35 New HCBA memBers Eminent Domain Section Solo & Small Firm Section sAve tHe dAtes by Amanda M. Uliano 69 by Blake Gaylord and Kenneth Pope 74 HCBA BeNefit Providers 42 sHAriNg kNowLedge ANd 65 tHe Never-eNdiNg storY - 76 AroUNd tHe AssoCiAtioN CiviL ANd CrimiNAL stAtUtes CoLLABorAtive NetworkiNg 78 CLAssifieds Environmental & Land Use Section of LimitAtioNs for tAx frAUd by Erin McCormick and Tax Law Section 79 JUrY triAL iNformAtioN Gordon Schiff by Matt Mueller 79 AdvertisiNg iNdex
THE HILLSBOROUGH COUNTY BAR ASSOCIATION editor offiCers ed Comey President: Carter Andersen Assistant editor President-elect: kevin m. mcLaughlin; imm. Past President: Benjamin H. Hill iv Luis viera secretary: Andrew Jenkins; treasurer: robert J. scanlan LAWYER executive director ex-offiCio John f. kynes Chief Judge ronald ficarrotta; Judge Laura e. ward; roberta Colton Chester H. Ferguson Law Center direCtors: 1610 N. Tampa St., Tampa FL 33602 AdvertisiNg dara Cooley Caroline Johnson Levine Jacqueline simms Petredis Telephone (813) 221-7777 Pr/Communications director Paige A. greenlee kristin A. Norse grace H. Yang www.hillsbar.com Corrie Benfield rachael greenstein Cory Person [email protected] (813) 221-7779 s. gordon Hill John A. schifino
(ISSN 1553-4456) THE HILLSBOROUGH COUNTY BAR ASSOCIATION Lawyer is published six times per year by the Hillsborough County Bar Association. Editorial, advertising, subscription, and circulation offices: 1610 N. Tampa St., Tampa, FL 33602. Changes of address must reach the Lawyer office six weeks in advance of the next issue date. Give both old and new address. POSTMASTER: Send change of address notices to Hillsborough County Bar Association, 1610 N. Tampa St., Tampa, FL 33602. One copy of each Lawyer is sent free to members of the Hillsborough County Bar Association. Additional subscriptions to members or firm libraries are $50. Annual subscriptions to others, $100. Single copy price, $15.00. (All plus tax.) The Lawyer is published as part of the HCBA’s commitment to provide membership with information relating to issues and concerns of the legal community. Opinions and positions expressed in the articles are those of the authors and may not necessarily reflect those of the HCBA. Submissions of feature articles, reviews, and opinion pieces on topics of general interest to the readership of the Lawyer are encouraged and will be considered for publication.
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2015-2016 HCBA Board of Directors officErs
President President-Elect Immediate Past President Secretary Treasurer Carter Andersen Kevin M. McLaughlin Benjamin H. Hill IV Andrew Jenkins Robert J. Scanlan dirEctors
Dara Cooley Paige A. Greenlee Rachael Greenstein S. Gordon Hill Caroline Johnson Levine
Kristin A. Norse Cory Person John A. Schifino Jacqueline Simms Petredis Grace H. Yang Ex-officio
Chief Judge Ronald Ficarrotta Judge Laura E. Ward Roberta Colton
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EDITOr’S MESSAGE Ed Comey - Law Clerk to U.S. Bankruptcy Judge Michael G. Williamson
the Labor of Lawyers
[L]awyers do build things: we build up people, we help build communities, and we help build civil society.
ell, hopefully this issue of the Lawyer roads, or bridges, or skyscrapers. To many, lawyers made it to you in time to read while merely push paper. (I’ll confess to having felt that way you are relaxing over the Labor Day from time to time.) In fact, not only do some people think weekend. Weather permitting, I hope lawyers don’t “build” things, I think there’s a sense that to get a chance to go to the beach, lawyers get in the way of things getting built. But one of although with an energetic 3-year-old and a rambunctious the benefits of editing the Lawyer is it has exposed me to 20-month-old, there won’t be a lot of reading (or relaxing how we do, in fact, build things. forW that matter). But the prospect of a relaxing three-day Take a look at the article by the Military & Veterans weekend did give me a Affairs Committee, chance to reflect on where you can read the Labor Day holiday. how we now have 17 Labor Day, of areas of law where course, was created by local lawyers have the labor movement to committed to support pay tribute to the those who have served “contributions workers our nation. And have made to the new HCBA President strength, prosperity, Carter Andersen has a and well-being of our great message about country.” (In case how other lawyers you’re interested, you have mentored him can vote whether and the impact that Matthew Maguire or has had on him. Peter McGuire is the There’s also a great real “Father of Labor essay by Sienna Osta Day” on the Department of Labor website.) Probably talking about how revolutionary lawyers constructed a set because Labor Day was created by the labor movement, of rules for a government that has endured over 200 years. I’ve always thought it was a holiday for “blue-collar” It doesn’t take long to realize lawyers do build things: workers or other non-professionals — not lawyers. We build up people, we help build communities, and we I’m not breaking news when I say lawyers rank near help build civil society. the bottom of various public opinion polls. Part of that, According to the Department of Labor website, Labor undoubtedly, is because lawyers — mostly thanks to a few Day was initially observed by a parade exhibiting “the “bad apples” — generally score poorly when it comes to strength and esprit de corps of the trade and labor trustworthiness. But I also think the public views the organizations” to the public. I’m not holding out hope profession unfavorably because — in their minds — we that we’ll one day have a parade exhibiting the HCBA’s don’t “build” things. strength and esprit de corps to the public. But I do hope That’s why, until recently, I’ve never quite felt that you get a well-deserved break from your work comfortable celebrating Labor Day. (Don’t get me wrong, helping build the strength, prosperity, and well-being of I’ll take the day off.) After all, we don’t build cars, or the country.
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HCBA PrESIDEnT’S MESSAGE Carter Andersen - Bush ross, P.A.
most super Lawyers Are super mentors
“Be purposeful in your mentoring — not only in paying it forward — but in giving others a chance who might not have access to the mentoring that you received.”
s we start the On mentoring, St. John 2015-2016 Bar encourages her audiences to do a year, we might simple exercise. On one page, list spend a little time everyone who has mentored you reflecting on our and helped you achieve your life mentoring relationships. First, and business goals. On a separate I humbly suggest we all find the page, list the people whom you timeA to thank our mentors. have mentored or helped as they Second, perhaps give some grew and developed. Then simply thought to how you are paying compare the lists. that mentoring forward to others. Are you giving back and I recently had the pleasure of making a difference for others the hearing Bonnie St. John talk way that your mentors helped about mentoring relationships. As you? Are there things that you an amputee (she had her right leg learned from your mentors that amputated at age 5), an Olympic you have shared with others? If athlete (silver and two bronze not, then it’s time to start. If so, medals in the 1984 Paralympics), then ask at least one more a rhodes Scholar, a best-selling question. Do you and the people author, a White House official, who mentored you look the same and an entrepreneurial businesswoman, St. John uses as or different from the people you are mentoring? her life experiences to provide leadership training and If you and both your lists look the same — the same career advancement tools and techniques worldwide to businesses and individuals. Continued on page 7
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HCBA PrESIDEnT’S MESSAGE Carter Andersen - Bush ross, P.A.
Continued from page 6 know other people in this world, and to have them as mentors is a true blessing to me. It is no surprise to me gender, the same race, and other similarities — perhaps that Jeff Warren’s leadership and mentoring of others it is time to open up the club? Be purposeful in your landed him on the cover of 2015 Florida Super Lawyers. mentoring — not only in paying it forward — but in Two lawyers outside my firm who are both Florida giving others a chance who might not have access to the Super Lawyers and have been super mentors to me are mentoring that you received. Bill Schifino Jr. and Ben Hill IV. Bill has been that mentor Several years ago, then Allstate Corporation’s to me outside the firm, who has given generously of his Executive Vice President and General Counsel Michele time to me with a helping hand and the career or practice Coleman Mayes gave the keynote address at our member advice I needed at important times. All Florida lawyers luncheon. Mayes, too, spoke about mentoring — and she will get to see Bill’s great leadership these next two years advised that lawyers need mentors both inside and as he serves as president-elect and then president of The outside of their own law firms. Inside the firm, lawyers Florida Bar! need substantive mentors to give them work and teach And particularly in this last year, Ben Hill IV mentored them how to practice law. Outside the firm, lawyers need me personally and by his example of lifting up others a helping hand or sometimes a little confidential advice. while serving as president of our Bar association. Ben I recently noticed that several of my mentors — both accomplished so much from his focus on military and inside and outside of my firm — all were included in the veterans issues to celebrating our judiciary in a time of 2015 Florida Super Lawyers. I doubt that is a coincidence great judges retiring and great new judges taking the because I believe that most super lawyers are also super bench and leading the Thirteenth Circuit! While leading mentors. But I want to recognize and publicly thank just our Bar to new levels of accomplishment in so many a few of those mentors. areas and inspiring so many of our members to do great First, I want to thank the lawyers who hired me at things, Ben also took the time to teach and show me the Bush ross 13 years ago and have mentored me ever since things I needed for the year ahead. I am quite sure Ben — Jeff Warren, Ed Savitz, and John Giordano. They has a strong future leadership role in our community, have each taught me so much about the law and state, and profession, and I look forward to supporting lawyering, and I am grateful that in addition to helping him along the way! me develop as a lawyer, they also taught me life and So I do humbly suggest that we all might reflect on our business lessons of leadership, faith, and service. I share mentoring relationships, thank our mentors, and make with them the belief that it is a true blessing to get to sure we are paying that mentoring forward to others.
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YLD PrESIDEnT’S MESSAGE Dara Cooley - Wilkes & McHugh, P.A.
A New and exciting Year for the YLd
“strong, deeply rooted desire is the starting point of all achievement.” — Napoleon Hill
s we begin a new year, I am delighted to The practice of law can be stressful; the hours are have this opportunity to introduce myself long, and clients are demanding. This is why your and share my vision for the Hillsborough membership in the YLD is so important; it is an County Young Lawyers Division — a opportunity to establish and build relationships with vision built on the successes of the past other young lawyers and to simply smile, laugh, and have president and the entire 2014-2015 executive committee. fun. We will continue to host quarterly happy hours and To tell a bit about myself, I was raised in a small town luncheons, in addition to promoting wellness and inA northern Michigan with two disabled siblings and a mindfulness to ease the demands of our profession. family dedicated to advocating on their behalf. My This year, we already have fantastic programs upbringing informs why and how I practice law — fighting scheduled, including the Judicial Shadowing Program, for those injured by negligence and misconduct. Also, Coffee at the Courthouse, the annual YLD Golf Tour - I serve on the board of nament, the HCBA the Lawyers Autism 5K Pro Bono river Awareness Foundation, run & Judicial Pig fundraise for the roast/Food Festival, Muscular Dystrophy and the State Court Association, and have Trial Seminar. I actively participated in strongly encourage all the YLD since the start young lawyers — new of my career. now, I and old members alike am honored to be the — to get involved and new YLD president participate in the and look forward to YLD programs. serving the needs of We are fortunate to our young lawyers. have more than 1,000 This is an exciting members in our year for the Young section. It is amazing Lawyers Division. I, to think of everything along with the entire we can accomplish. 2015-2016 executive The Young Lawyers committee, am committed to providing young lawyers Division will continue our tradition of community service with events and programs that will catapult their and build upon the successes of last years’ programs, professional development. We will strive to ensure that which included pro bono services through Attorney ad your membership in our organization makes you feel Litem, Wills for Heroes, and Family Forms Clinic, along more comfortable in whatever you want to contemplate with community outreach through Law Week, Judge and achieve. This year, young lawyers will have many robert Simms High School Mock Trial Competition, and opportunities to not only network with other lawyers and youth service projects. judges, but also to find mentors and get more involved with the local Bar association. Continued on page 9
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Continued from page 8
For more information about YLD STATE COURT TRIAL the Young Lawyers Division, please the Young Lawyers division hosted the 2015 state Court trial seminar on check out our Facebook page, “Hillsborough County Bar Young June 12 at the george e. edgecomb Courthouse. speakers included Chris knopik, Lawyers Division,” or the HCBA’s kevin mcLaughlin, david Banker, woody isom, marian P. mcCulloch, richard website, www.hillsbar.com/group/ gilbert, Joe varner, James w. Clark, elizabeth tosh, Chief Judge Craig C. villanti, YLD, or please feel free to contact Judge Lisa Campbell, Judge John Conrad, and Judge Caroline tesche. me at any time at dcooley@ wilkesmchugh.com.
2015-2016 HcBA YLd Board of directors
officERs President: Dara Cooley President-Elect: H. Web Melton III Immediate Past President: Anthony D. Martino Treasurer: Colleen O’Brien Secretary: Tammy Briant Historian: Maja Lacevic Parliamentarian: Brett Metcalf Liaison to the HCBF: Adam Fernandez
diREctoRs Alexandra Haddad Palermo Traci Koster Amy Nath
Melissa Mora the YLd would like to thank the event’s sponsor: Northstar Bank. Laura Tanner Jason Whittemore Jeffery Wilcox
Ex-officio Jill K. Bell
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ExECUTIVE DIrECTOr’S MESSAGE John F. Kynes - Hillsborough County Bar Association
Carter Andersen installed as HCBA President as Bar groups Look to the future
“we strive to serve each other and the profession, and we strive to serve the community.” — Carter Andersen
arter Andersen’s enthusiasm for the law and for helping others is contagious. And it’s Andersen’s enthusiasm — along with his Cleadership, professionalism, and ethics — that will help him carry on the “long and storied leadership” of the HCBA, said Jeff Warren, president of Bush ross, P.A., as he introduced Andersen as the new president of the HCBA at the Installation of Officers & Directors in June. “He’s one of those special people I call ‘direction changers,’” said Warren, referring to his law partner’s ability to positively influence and change the lives of others. service beyond the legal community, including Tampa Bay In his introduction, Warren said Andersen’s background Little League and Christ the King Catholic School. and experience will help him succeed as HCBA president. referring to Andersen’s passion for coaching youth Andersen was raised in Tampa and Alexandria, Va., sports and mentoring young people, Warren joked that and is a double Gator, with an undergraduate and a law he has met a lot of people over the years, but he hasn’t degree from the University of Florida. He began his legal met many people whose children Andersen hasn’t career with a large law firm in Washington, D.C., and coached in one sport or another at some point (I must say four years later, he moved to Tampa and joined Bush my son falls in this category). ross in 2003. In his remarks, Andersen talked about leading the Andersen has served on the HCBA Board since 2009, HCBA this year and some lessons he has learned from and he served as chair of various HCBA and YLD Bar leaders before him. He said what helps set the committees over the years. In addition, Andersen is a past HCBA apart is the relationships Bar members share with chair and continues to serve on the Thirteenth Circuit’s one another. Judicial nominating Commission, and he previously “We strive to serve each other and the profession, and served on The Florida Bar’s Thirteenth Judicial Circuit we strive to serve the community,” Andersen said. Grievance Committee. Concluding his remarks, he emphasized the In his remarks, Warren highlighted Andersen’s importance of taking time to mentor other lawyers, and commitment to his family — his wife, Dana, and their five children — as well as his commitment to community Continued on page 11
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ExECUTIVE DIrECTOr’S MESSAGE John F. Kynes - Hillsborough County Bar Association
Continued from page 10 Plus, make it a point to attend the HCBA’s 19th Annual Bench Bar Conference & Judicial reception, he acknowledged some colleagues who have mentored which always is a highlight during the year. him during his career. He cited Warren, retired Chief Meanwhile, the HCBA and legal groups across the Judge Manual Menendez Jr., and longtime friend Bill country must grapple with numerous changes in the legal Schifino Jr., among others, as examples. profession and evolve in order to stay relevant. newly Further, he praised Schifino for his past service to the installed Florida Bar President ramón Abadin talked Bar and congratulated him on becoming president-elect about the challenges facing the profession and also the of The Florida Bar this year. work of the Vision 2016 Commission at The Florida Bar’s annual convention in June. *** The commission is studying the future of legal The fall season and a new Bar year also bring new education, technology, Bar admissions, and access to opportunities for HCBA members. So stay connected legal services. “We have to accept that we are no longer with your colleagues, and take advantage of the a monopoly. We are now part of a legal marketplace,” numerous educational and CLE programs offered Abadin told convention attendees. throughout the year. And consider joining the HCBA’s Looking to the future, this is something we all should Lawyer referral & Information Service to help grow your follow closely. practice through case referrals. See you around the Chet.
HCBA & YLD BOARDS PLAN FOR THE YEAR AHEAD the Hillsborough County Bar Association Board of directors and the Young Lawyers division Board of directors joined forces for a combined retreat on July 31 and August 1 at the Hotel zamora in st. Pete Beach. Both boards discussed plans and programs for the upcoming Bar year, as well as ways to engage and recruit new members.
the board members would like to thank the retreat sponsors:
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STATE ATTOrnEY’S MESSAGE Mark A. Ober - State Attorney for the Thirteenth Judicial Circuit
the Chain of Custody
these safeguards exist to protect the integrity of the evidence used to secure convictions.
hen law enforcement collects evidence of tampering is during the course of an investigation, more than a bare allegation5 or a that evidence must be secured prior to possibility.6 For example, the admission of evidence trial. Law enforcement agencies have that has been repackaged, if explained by the testifying procedures in place regarding the witness, is not an error.7 If the defense is able to meet their collection, storage, transfer, and testing of evidence. These initial burden of showing a probability of tampering, the safeguards exist to protect the integrity of the evidence used burden would then shift to the state to prove that toW secure convictions. 8 tampering did not occur. At this point, the state may need At trial, when the state introduces physical items into to proceed with proving the complete chain of custody. evidence that have been in the custody of law As your state attorney, I seek justice. Justice requires enforcement agencies, the state must lay a proper that convictions be based upon sound, reliable evidence. foundation to establish the admissibility of the evidence. The integrity of our evidence supports the integrity of In most cases, that foundation does not include the our convictions. introduction of testimony by every witness in the chain of custody. “relevant physical evidence is admissible unless 1 Peek v. State, 395 So. 2d 492, 495 (Fla. 1980). there is an indication of probable tampering.”1 Although 2 See Dodd v. State, 537 So. 2d 626 (Fla. 3d DCA 1988). it is important that law enforcement agencies maintain a 3 Bush v. State, 543 So. 2d 283, 284 (Fla. 2d DCA 1989). proper chain of custody, the state is not normally required 4 See Floyd v. State, 850 So. 2d 383 (Fla. 2002); State v. to prove that complete chain of custody at trial.2 Taplis, 684 So. 2d 214 (Fla. 5th DCA 1996); Hildwin v. State, In some cases, there may be a break in the chain of 141 So. 3d 1178 (Fla. 2014). custody. “A mere break in the chain of custody is not in 5 Terry v. State, 668 So. 2d 954 (Fla. 1996). and of itself a basis for exclusion of physical evidence.”3 6 Robinson v. State, 561 So. 2d 1264 (Fla. 3d DCA 1990). If defense shows that there has been a probability of 7 See Garcia v. State, 873 So. 2d 426 (Fla. 3d DCA 2004); tampering, the state must prove a complete chain of Robinson v. State, 561 So. 2d 1264 (Fla. 3d 1990). custody before evidence can be admitted.4 A probability 8 Murray v. State, 838 So. 2d 1073 (Fla. 2002).
Did you know that government attorneys can join the HCBA for a reduced rate? Go to hillsbar.com to join today!
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Understanding The Florida Bar’s Vision 2016
he Florida Bar Vision 2016 Commission, appointed in 2013, is performing an in-depth review of four general areas that will impact the future practice of law in Florida: legal education; technology; bar admissions; and access to legal services. This comprehensive study will provide the foundation to prepare today’s lawyer for tomorrow’s practice.
Access to Legal Services* T• Limited Scope Representation *The Access to Legal Services subgroup is currently inactive while the Florida Commission on Access to Civil Justice, created by the Supreme Court, conducts its work directly pertaining to access to justice issues. The Florida Commission on Access to Civil Justice website is www.flaccesstojustice.org.
Bar Admissions • Licensing of Non-Lawyers to Perform Legal Tasks (displacement of lawyers caused by technological advances) • Alternative Business Structures for Law Firms • Multijurisdictional Practice/Reciprocity • Multijurisdictional Practice/Reciprocity - International Focus • Uniform Bar Examination
Legal Education • Breaking the Existing Formula for Becoming a Lawyer (e.g., how law schools teach; how the Bar exam is given) • Restructuring the Curriculum (e.g., substantive, practical, experiential, innovative, business of law, professionalism, and character formation) • Shaping Education to Meet Market Needs and Needs of Consumers of Legal Services • Interconnection of External Forces on Legal Education (e.g., Bar exam, technology) • Competencies Needed for the Providing of Legal Services
Technology • Technology that Performs Legal/Lawyer Work • Integration of Technology into Law Offices • Integration of Technology into the Courts • E-Discovery • Areas of Work/Employment Opportunities • Target Minimum Technology Competency Requirements for Lawyers • Online Legal Service Providers
Information on the areas of study, news articles covering the work of the commission, and contact emails to provide input to each subgroup are posted at www.floridabar.org/vision2016.
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SPECIAL FEATUrE Judges Samantha Ward and Lisa Campbell, Thirteenth Judicial Circuit Save the Date october 27, 2015
Bench Bar Conference, membership Luncheon & Judicial reception “Breaking good: Prioritizing Professionalism in Advocacy”
haracter, competence, commitment, and topics in round-table discussions, with segments focused civility. According to The Florida Bar’s on civil, criminal, appellate, federal, and family law. Standing Committee on Professionalism, For the first afternoon plenary session, our attention these are the “essential ingredients of will turn to the U.S. Supreme Court with a review of the professionalism.” Although the opposite past term and preview of the term to come. And for our might make for good TV, those who uphold these conference finale, we will wrap up our “Breaking Good” standards are the real-life legal stars. theme with a plenary session on professionalism. (For all CThus, the Hillsborough County Bar Association and you “Breaking Bad” fans, we did not ask Saul Goodman its Bench Bar Committee co-chairs, Judges Samantha to speak at this one.) Ward and Lisa Campbell, are proud to announce the The Bench Bar Conference is the HCBA’s signature theme for the 19th Annual Bench Bar Conference — educational event of the year, and as always, the Breaking Good: Prioritizing Professionalism in committee seeks to keep the channels of communication Advocacy. The focus of this year’s conference is on our open between the bench and bar, with its primary focus duty to rise to the challenges we face in a profession that on improving the justice system. Working together, we can is inherently filled with drama and pressure. make positive changes in our court system. We believe that the curriculum for this year’s In the spirit of collaboration between the bench and conference is particularly timely and relevant, given the bar, we also invite you to join us at the Judicial reception recent headlines shining a spotlight on professionalism immediately following the conference. issues in the legal field. After our traditional morning So please save the date for the “ethics-themed” breakfast, the day’s break-out sessions Bench Bar Conference, Membership promise to be both substantive and practical. In an effort Luncheon & Judicial reception on to highlight progressive legal efforts outside the October 27. Look for more courtroom, we are adding sessions on collaborative law information about specific course and alternative dispute resolution this year. In addition, offerings and registration instructions we will feature a session on the LLC revised Act. in email blasts from the HCBA and on Building on the success of our “View Toward the hillsbar.com. We look forward to Bench” seminars, we are adding two “View from the seeing you! Box” sessions, which will give attendees a chance to hear from former jury members on civil and criminal cases. Back by popular demand, the “View Toward the Authors: Bench” sessions will provide lawyers and judges the Judges Samantha Ward and Lisa opportunity to candidly talk about practice-specific Campbell, Thirteenth Judicial Circuit
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Hillsborough County Bar Association 100 Club Law firms with 100% membership in the HCBA 12th Judicial Circuit Court Gardner Brewer Martinez-Monfort, P.A. Nancy Jacobs, Esq., LLC 13th Judicial Circuit Court Gaylord Merlin Ludovici & Diaz Nicholas & Bell, P.A. 2nd District Court of Appeal Genders Alvarez Diecidue, P.A. Petitt Wolfe Craine Worrell LLC Addison & Howard, P.A. George & Titus, P.A. Phillip Baumann, P.A. Allen Dell Gibbs & Parnell, P.A. Port Tampa Bay Alley Clark & Greiwe Gomez & Touger, P.A. Ramirez Law Firm Ansa Assuncao, LLP Gordon J. Schiff, P.A. Rardon & Associates, P.A. Anthony J. LaSpada P.A. GrayRobinson, P.A. Richard A. Harrison, P.A. Anton Castro Law Greenberg Traurig Rieth & Ritchie, P.A. Austin, Roe & Patsko, P.A. Gunn Law Group Robert E. Morris, P.A., Attorneys at Law Baccarella & Baccarella, P.A. Gunster Robert G. Kipp, P.A. Baird Law Group Harmon,Woods, Parker & Abrunzo, P.A. Rocke, McLean, & Sbar, P.A. Bajo | Cuva | Cohen | Turkel, P.A. Harris and Hunt, P.A. Roig, Tutan, Rosenberg, Martin, & Stoller, P.A. Barbas, Nunez, Sanders, Butler & Hovsepian Harrison Kemm P.A. Rotella Legal Group, P.A. Barker, Rodems & Cook, P.A. Harvey Schonbrun, P.A. Rumberger, Kirk & Caldwell, P.A. Barnett Bolt Kirkwood Long & Koche Hilary High, P.A. Saady & Saxe, P.A. Bay Area Legal Services Plant City Hillsborough County Attorney’s Office Saxon, Gilmore, Carraway & Gibbons, P.A. Bay Area Legal Services Wimauma Hill Ward Henderson Scarritt Law Group, P.A. Beltran Litigation, P.A. Himes & Hearn, P.A. Schropp Law Firm Bivins & Hemenway, P.A. Holcomb & Leung, P.L. Scott A. Haas, P.A. Boss Arrighi Hoag, P.L. James P. Knox, PLLC Sessions Fishman Nathan & Israel, LLP Bowes Law Group Johnson & Cassidy, P.A. Sessums Law Group, P.A. Brandon Family Law Center, LLC Jorgensen & Ozyjowski, P.A. Seth Nelson, P.A. Brandon Legal Group, P.A. Joryn Jenkins & Associates, P.A. Shawn Harrison Associates, PLLC Brannock & Humphries, PA Joyce & Reyes Law Firm Silver & Agacinski Brennan, Holden & Kavouklis, P.A., Attorneys at Law Judd Bean Law Spector Gadon & Rosen Brett Hendee, P.A. Jung & Sisco, P.A. Stichter, Riedel, Blain & Prosser, P.A. Bricklemyer Law Group Keys & Coakley, P.L. Stolberg & Townsend, P.A. Broad and Cassel Kynes Markman & Felman, P.A. Stoler Russell Buell & Elligett, P.A. Langford & Myers, P.A. Stuart & Strickland, P.A. Burr & Forman Law Offices of Andrew Shein Tampa Bay Elder Law Center Bush Ross Law Office of Christine L. Derr, P.A. Tampa City Attorney’s Office Butler Pappas Weihmuller Katz Craig, LLP Law Office of J. Armando Edmiston Tampa Law Advocates, P.A. Caglianone, Miller & Associates Law Office of Michael J. Winer, P.A. Terrana Perez & Salgado, P.A. Carey, O’Malley, Whitaker & Mueller, P.A. Law Office of Philip S. Wartenberg The Bleakley Bavol Law Firm Carlton Fields Jorden Burt, P.A. Law Office of Robert M. Geller The Bleakley Law Firm Carman & Bevington, P.A. Law Offices of Robert R. Renfroe, P.A. The Fernandez Firm Cheeseman & Phillips, P.A. Law Offices of Chris E. Ragano, P.A. The Plante Law Group, PLC Clark & Martino, P.A. Law Offices of J. Kevin Carey, P.A. The Thorpe Law Firm, P.A. Clerk of the Circuit Court’s Office Lennox Law, P.A. The Yerrid Law Firm, P.A. Cole, Scott & Kissane, P.A. Leo D. Gomez, P.A. Thomas & LoCicero PL Conwell & Kirkpatrick, P.A. Leon & Berg, P.A. Thompson & Brooks Conwell Business Law, P.A. Leslie Reicin Stein P.L. Thompson Legal Center LLC Cortez Hodz Family Law and Mediation, P.A. Lieser & Skaff, P.L. Thompson, Sizemore, Gonzalez & Hearing, P.A. Culpepper Kurland Lins Law Group, PA Timothy G. Anderson, P.A. Danahy & Murray, P.A. Mac A. Greco, Jr., P.A. Todd Foster, PLLC Dandar & Dandar Maney, Damsker, Jones & Kuhlman, P.A. Trentalange & Kelley, P.A. de la Parte & Gilbert, P.A. Manson Bolves P.A. Trombley & Hanes, P.A. DeCort & Kirkner P.L. Marlowe McNabb, P.A. Valkenburg & Velez, P.A. Dixon & Associates Mason Black & Caballero P.A. Vecchio, Carrier, Feldman & Johannessen, P.A. Dogali Law Group, P.A. Masten Peterson & Denbo, LLC Wagner McLaughlin Donica Law Firm, P.A. Matthews Bowen Walk Law Firm, P.A. Fernandez & Hernandez, LLC McCalla Raymer, LLC Walters Levine Klingensmith & Thomison, P.A. Finebloom & Haenel, P.A. McIntyre, Panzarella, Thanasides, P.A. Weekley, Schulte & Valdes LLC Fiol Law Group, P.A. Mechanik Nuccio Hearne & Wester, P.A. Wenzel Fenton Cabassa, P.A. Fletcher & Fischer P.L. Meirose & Friscia, P.A. Wetherington, Hamilton, P.A. Florida Law Group, LLC Melkus, Fleming & Gutierrez Wiand Guerra King Friedman Law Associates P.L. Michael D. Fluke, P.A. Wicker Smith O'Hara McCoy & Ford P.A. Friscia & Ross P.A. Michael P. Maddux, P.A. William A. Knight, P.A. Fuentes & Kreischer, P.A. Mike Murburg, P.A. Willis Law Firm, P.A. Fulgencio Law Morgenstern & Herd, P.A. Yanchuck, Berman, Wadley and Zervos, P.A. Gallagher Keenan, P.A. Morris Law Firm Yanger Law Group, P.A. Galloway, Johnson, Tompkins, Burr and Smith Nader Mediation Services Young Scanlan, LLC
TO BE ADDED TO THIS LIST, PLEASE EMAIL A LIST OF ATTORNEYS IN YOUR FIRM TO [email protected].
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SPECIAL FEATUrE Michael S. Hooker - Phelps Dunbar, LLP
off the record with the Hon. Charlene e. Honeywell
“As a result of the impact of integration, i became more aware, more interested in the legal process.”
he following is an edited excerpt of an interview with the Hon. Charlene E. Honeywell, United States District Court, Middle District of Florida, Tampa Division. Q. Can you tell us a little about your background? A.TI am a native Floridian; I was born and raised in Broward County, Florida. I attended the public schools in Pompano Beach. ... I went to Howard University in Washington, D.C., on a full academic scholarship. I knew that I wanted to go to law school, and I knew that I Hon. Charlene E. Honeywell would most likely end up practicing law here in Florida, so I came back United States District Court Middle District of Florida, Tampa Division Continued on page 19
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SPECIAL FEATUrE Michael S. Hooker - Phelps Dunbar, LLP
Continued from page 18 to Florida to attend the University of Florida. I received a full fellowship to attend the University of Florida. ... I did well in school, in part, because I grew up in a single-family household. I am an only child. My parents divorced when I was young, and my mother was an educator; she was really strict about education. So I was one of those kids who always made straight A’s. Although I knew my mother would send me to college, I didn’t know if she could afford to send me to a school that I would want to attend. And so my goal was to get a scholarship to attend college, and that’s what I did. Q. I understand that you were bussed to another school in an effort to integrate schools in your area. What impact did that have on your later life and perhaps your career? A. Well, it caused me to pay more attention to the legal profession. I started out attending an all-black school because the schools were segregated at that time, and
Continued on page 20
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SPECIAL FEATUrE Michael S. Hooker - Phelps Dunbar, LLP
Continued from page 19 decisions are extremely tough. So as a practitioner, I enjoyed most my time at the city attorney’s office that was first grade through sixth grade. From and Hill Ward. there, I went to the black high school, which was Q. Governor Lawton Chiles appointed you as a county seventh through 12th. At the end of my seventh- court judge in 1994, Governor Jeb Bush appointed grade year, the school board began to implement you as a circuit court judge in 2000, and President plans for desegregation. They closed the black high Barack Obama nominated you to the federal bench school I attended and bussed all of us over to what in 2009. How gratifying was it to have received such was and remained a predominantly white school. strong bipartisan support? The first year was chaotic and tumultuous. Initially, A. It was tremendously gratifying; as judges, we are kids threw rocks at the busses, and police officers nonpartisan decision-makers. We don’t rule based manned the hallways at different times. When times upon a person’s political affiliations, their got really bad, we even had police officers with dogs community status, or their socioeconomic status. in the hallways. But the chaos didn’t last for a long none of those things are important to us. When period of time. It was the initial resistance to black you go before a tribunal and you demonstrate that students and white students going to school you have cross-support from republicans and together. After a while, everyone was fine. Democrats, it’s symbolic of the kind of person you Everybody got along. We sat in classes together, we have been or the life you have lived. I really try to interacted together, played on sports teams make sure that all individuals appearing before me together; it was great. ... As a result of the impact feel that they have received fair and just treatment of integration, I became more aware, more regardless of the outcome of the case or their interested in the legal process. I didn’t have any role position in society. models who were judges, had never been in a Q. You tell young people to be prepared for setbacks courtroom, but I would hear news about how the while pursuing their dreams, you know, “Get back federal courts had ruled “x, y, or z” as it related to up and keep on going!” Is that message a product of desegregation and the fact that “separate but what you’ve experienced? equal” was no longer the law of the land and that A. these schools needed to be integrated. Absolutely, and I do preach that message. ... That is a part of my experience. As you know, when I was Q. So that experience spurred your interest in the law? appointed to the state court bench in June 1994, A. It absolutely spurred my interest in the law, along I lost the judicial election that September, and that with suggestions from teachers. At that time, “Perry was a major setback. I went to law school because Mason” was one of my favorite television shows. I wanted to be a judge, not because I wanted to be Q. You were a public defender for a number of years, a lawyer. It was always a part of my plan to at some then an assistant city attorney for the City of point start applying for or run for the judiciary, Tampa, and a shareholder in a large commercial whichever opportunity first presented itself. And so law firm locally. Which of those non-judicial career once I received the appointment, to lose was practice experiences did you enjoy the most? devastating. In retrospect, I look back now and think A. I had tremendous training, appellate, and trial court about what was the purpose for that experience, and experience as an assistant public defender. But I I can’t say that I know the purpose. It was a part of enjoyed handling civil matters much better than the plan for my life from which I learned, grew, and criminal matters, and still do. As a federal judge, became a better person. As a result, I can share that I preside over criminal and civil proceedings. I enjoy experience and encourage others. the civil proceedings more, perhaps because of the Q. Judge, you could be considered a trailblazer; for variety, novelty, and complexity of some of the instance, you were the first African-American issues presented in them. However, as I tell many of female partner at your prior law firm. You are also the criminal defendants appearing before me, one of only a handful of African-American female sentencing is the toughest part of my job. I don’t federal district court judges in Florida. What advice take it lightly because I am making decisions that will impact people’s liberty and lives forever. These Continued on page 21
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SPECIAL FEATUrE Michael S. Hooker - Phelps Dunbar, LLP
Continued from page 20 use the electronics in the courtroom to aid in the presentation of their arguments. would you give to someone who wants to follow in Q. Switching topics, can you tell us something about your footsteps? your family and your children? A. My advice would be to plan, prepare, to set goals, A. My daughter, who is 19, just finished her freshman and to not give up. I just can’t emphasize that year in college, where she’s pursuing a degree in enough. So many people give up after one or two industrial engineering; my son, who is 22, just tries, particularly as it relates to becoming a judge. graduated from college with a degree in broadcast The first step is getting yourself ready, being journalism and a minor in marketing. prepared, and you do that by getting the experience Q. How have you balanced the demands of family and needed to be a judge. It’s important to work in the career life? community, legal and Hillsborough County; you A. It’s been difficult, but I had the support of family especially want the legal community to know you. If and close friends. I am a master at multitasking and you’ve prepared yourself, if you’ve been involved, delegating. It’s much easier now because my then you start applying and you continue to apply or children don’t require as much guidance. run for a judgeship. Q. What do you like to do to relax and have fun? Q. The current Florida Bar president has opined that our profession is at a crossroads — with the influx of A. I want to travel abroad more. My bucket list so many new lawyers, increased competition from includes trips to Italy, an African safari, the south of nontraditional providers of legal services, and France, and others. technological changes in the way we practice law. Q. You mentioned earlier that you thought it was Any thoughts on that? important to be involved in the community. What A. I agree with the Florida Bar president’s position on organizations are you involved in? that. ... The practice of law has changed A. I am in two Inns of Court: the Cheatwood Inn of tremendously from what it was when I started Court and the Smith Litigation Inn of Court. I am practicing in 1982. Ultimately, however, lawyers also a member of the Board of Trustees for the should still have as their number one goal and focus, University of Florida’s Levin College of Law. Also, the zealous representation of their clients. I have I am a member of Delta Sigma Theta Sorority, the been surprised on more than one occasion by the Tampa Alumnae Chapter, as well as the Tampa quality of the written filings I’ve had to review in Chapter of The Links, Incorporated, a service various cases. It has caused me to wonder if organization. I am an associate member of Jack and attorneys are practicing law for the wrong reasons. Jill of America, the Greater Tampa chapter, and a There was a time when the practice of law was an member of the Executive Board of the Howard honored profession and lawyers were held in high University Alumni Club. regard. Lawyers have the best opportunity, perhaps Q. Obviously, you have a number of years left on the aside from doctors, to help people — doctors help bench, but when it’s all said and done, how do you people who are sick; lawyers help people who are want to be remembered? injured or have been wronged. Lawyers should A. always put forth their best effort in the I’d most like to be remembered as a judge who was representation of their clients. Some lawyers have fair, and then as a judge who was always prepared. I forgotten to do this. want the lawyers and parties to know that when they come before me, I’m going to be prepared, and I Q. Is there anything that you’d like to see changed want them to leave believing that they about the way lawyers who come before you received a fair proceeding and an conduct themselves? opportunity to be heard, regardless of A. I would like for them to remember that they should the outcome. always be prepared. As you know, in the Middle District, we don’t conduct hearings on many matters. If I schedule a hearing, I expect the lawyers Author: Michael S. Hooker - Phelps to be prepared. Additionally, lawyers are welcome to Dunbar, LLP
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SPECIAL OP/ED roni A. Elias
students’ responsibilities for improving Law schools
students are in a better position to understand what will be required of them upon graduation and to communicate those requirements to the faculty and administration. the students’ success is the school’s success.
here is an old assumption that academic of the most important domestic and international leadership comes only from faculty industries.”3 They sell a product — an education — and and administrators. This assumption they sell it at a high price. In 2012, the average annual must change. Students, faculty, and tuition at a private law school was about $40,500; public administrators all must work together to law school tuition was $23,600.4 To cover both tuition improve law schools. The ultimate leadership must come and living expenses during law school, the average from students, though, because they are the ones law student will borrow about $140,000.5 Those prices not schoolsT serve and because they have a unique ability to only reflect an extensive financial commitment, they recognize how changes in the legal profession are working also reflect an enormous personal commitment of time out on the ground. and energy. In both a business and institutional sense, law schools Even if one disagrees that law schools should operate exist to serve their students. From a business perspective, like businesses, there is still a reason for schools to put law schools are enterprises selling an education, and students’ interests first. Law schools have a moral, if not students are their consumers.1 The institutional a legal, duty to do so. These schools profess to have perspective is similar. Law schools are nonprofit expertise on preparing students for successful legal organizations designed to serve a public good — the careers, and students have placed their trust in law improvement of students’ lives and the development of schools for this purpose.6 The students’ reliance gives law a better legal profession. schools a duty to repay that trust by putting student Businesses enjoy their greatest success when they focus interests above the institution’s interest in prestige or on meeting the needs, expectations, and preferences of rankings or in the professors’ interest in scholarship. At their customers. For example, when Lou Gerstner turned the very least, law schools must act as stewards of the around IBM in the 1990s, one of his first steps in students’ interests, and stewardship with a back-and- reforming the company was to require his top executives forth dialogue is paramount for everyone’s success. to meet with a certain number of customers every week Of course, it would be possible to put the students’ and file reports about customers’ needs, wants, and interests first while reserving the leadership role for issues. Those executives soon got the message about the faculty and administrators. There is an argument to be centrality of consumer needs and understood that made that students should follow the lead of the faculty “message” was a crucial part of turning IBM’s fortunes and administration, as the children in a family follow the around.2 When businesses focus on their own internal lead of their parents/elders. This argument depends on expectations, giving customers what they think the premise that students lack information and customers should want instead of what customers experience about what a legal career requires, the actually want, they drive customers to their competitors. direction of their legal education, or the direction of the Like every other part of the university, law schools institution in which they will spend only three years. are businesses (which is especially true for the for-profit From this point of view, the students’ only role in law schools). As Mark Taylor, chairman of the religion shaping the direction of an institution seems to be filling department at Columbia, has pointed out, “It is out course evaluation forms.7 ludicrous not to acknowledge that colleges and universities are businesses, and higher education is one Continued on page 23
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SPECIAL OP/ED roni A. Elias
Continued from page 22 group of students proposed a radical curriculum reform, eliminating all course requirements and allowing But the 21st century legal profession faces challenges students the option to take all classes on a pass/fail and changes that require something profoundly different basis.14 not only was this reform adopted, but it was the from a legal education and the law schools that provide impetus for a long period of success for the university, it. For one thing, practicing lawyers increasingly in attracting better students, more donations, and in complain about a lack of personal satisfaction in their producing more illustrious graduates.15 professional lives.8 In particular, they complain that law Student leadership can be, and should be, more than school did not prepare them to cope with the realities of just putting notes in a suggestion box or coloring in practice or to learn how to make a meaningful social circles on a course evaluation form. If given the contribution through their legal careers.9 As a result, opportunity, students can tell their schools what they some law school graduates find their careers frustrating want and need, and that communication can be the or pointless, and they wonder whether there was basis for profound changes that improve the institution something they missed during law school.10 in every respect. Another problem for law students entering the A law school is entirely composed of the individuals profession in the 21st century is the changing economic who belong to it, including faculty, administrators, realities of law practice. Despite a recent small uptick, current students, and alumni.16 But the overwhelming private firms have been hiring fewer lawyers since the majority of individuals associated with a law school are recession of 2008, leading to intense competition for the current and former students. If the law school is employment.11 Moreover, even for those who do find conceived as a body, that body comprises the people who employment, the prospects for advancement and long- study and who have studied there. These are the people term career security are much dimmer than they were who truly have a concern for the school.17 even 10 years ago.12 Thus, the students must take the first step in bringing To respond to these emerging problems, law schools about change for the better. Together, all parties can help must make changes, and more student involvement in their institutions develop in a way that is better for the administrative decisions is one of the first steps. With the schools, the legal profession, and the community they legal profession evolving so rapidly, faculty and both serve. administrators must appreciate the nature and extent of the changes.13 Students are in a better position to 1 Are They Students? Or “Customers”?, n.Y. Times, Jan. 3, understand what will be required of them upon 2010, http://roomfordebate.blogs.nytimes.com/2010/01/03/ graduation and to communicate those requirements to the are-they-students-or-customers/ (last visited on Dec. 13, 2014). faculty and administration. The students’ success is the 2 See Lisa DeCarlo, How Lou Gerstner Got IBM to Dance, school’s success. Forbes, nov. 11, 2002, http://www.forbes.com/2002/11/11/ The faculty and administration must take an active cx_ld_1112gerstner.html (last visited on Dec. 13, 2014). 3 role in shaping the information that comes from Are They Students? Or “Customers”?, supra note 1. 4 students, filtering it through their experience and Ethan Bronner, Law Schools’ Applications Fall as Costs adapting it to the needs of the institution. But the Rise and Jobs Are Cut, n.Y. Times, Jan. 30, 2013, impetus must first come from the students. There is http://www.nytimes.com/2013/01/31/education/law-schools- precedent for student leadership in determining the applications-fall-as-costs-rise-and-jobs-are-cut.html?pagewanted direction of educational institutions. During the student =all&_r=0 (last visited Dec. 13, 2014). 5 rebellion of the 1960s, students took an active and Patrick Clark, Debt Is Piling Up Faster for Most Graduate leading role in shaping substantial reform in higher Students - But Not MBAs, Bloomberg Businessweek, March 25, education. Student protests challenged entrenched ideas 2014, http://www.businessweek.com/articles/2014-03-25/ about what colleges should teach, research, and the student-loan-debt-piles-up-for-graduate-students-but-not-mbas relationship between higher education and other social (last visited Dec. 13, 2014). 6 institutions and groups. Many of the changes that There is some reason to think that the law schools’ duty shaped the current direction of higher education were to their students is akin to a fiduciary duty, which arises when the product of these protests. One of the most notable one person relies on the special skills or expertise of another reforms took place at Brown University, revolutionizing and therefore reposes trust and confidence in the other. the curriculum and the identity of the school, where a Continued on page 24
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SPECIAL FEATUrE roni A. Elias HCBA SPEAKERS’ BUREAU
martha irene weed spoke on behalf of the HCBA speakers’ Bureau Continued from page 23 at a luncheon for the greater tampa sertoma Club on June 11. if you are The new Hampshire Supreme Court a member of a community or service group that needs a speaker, please held that a public university has a refer them to the HCBA speakers’ Bureau page on our website, fiduciary duty to its students. See www.hillsbar.com. Schneider v. Plymouth State College, 744 A.2d 101, 105-06 (n.H. 1999). 7 Are They Students? Or “Customers”?, supra note 1. 8 Bethany rubin Henderson, Asking the Lost Question: What Is the Purpose of Law School, 53 J. Leg. Educ. 1 (2003). 9 Id. 10 See id. 11 Jennifer Smith, Big Law Firms Resume Hiring, Wall St. J. (June 23, 2014), http://www.wsj.com/articles/big-law- firms-resume-hiring-1403477513 (last visited Dec. 17, 2014). 12 See id; see also Marc Galanter & William Henderson, The Elastic Tournament: A Second Transformation of the Big Law Firm, 60 Stanford L. rev. 1867 (2008). 13 Big Changes in Character of Legal Profession, http://www.northwestern.edu/ newscenter/stories/2005/07/legal.html (last visited on Dec. 13, 2014). 14 Ben Leubsdorf, The New Curriculum Then, Brown Daily Herald, March. 2, 2005, http://www.browndailyherald.com/ 2005/03/02/the-new-curriculum-then/ (last visited Dec. 13, 2014). 15 Leubsdorf, supra note 14; Brunoniana, http://www.brown.edu/Administration/ news_Bureau/Databases/Encyclopedia/ search.php?serial=C0780 (last visited on Dec. 13, 2014). 16 Alex Smith, Engaging Graduates: The Role of Alumni in Employability, The Guardian, http://www.theguardian.com/ higher-education-network/blog/2011/ sep/15/alumni-graduate-employability ATTENTION STUDENTS (last visited on Dec. 13, 2014). 17 Id. The HCBA offers student memberships for only $25. Join today, and start your career off on the right foot! Author: Roni A. Elias
2 4 SEPT - OCT 2015 | HCBA LAWYER 402118 SEPTEMBER 2015 Lawyer Inside_Layout 1 8/24/15 2:39 PM Page 25
Introducing the 2015-2016 HCBA Section & Committee Chairs
APPELLATE PRACTICE HEALTH CARE LAW JUDICIAL PIG ROAST Jared Krukar & Mariko Outman T.J. Ferrante & Sara Younger Seifried COMMITTEE Eric Koenig & Anthony Palermo BENCH BAR COMMITTEE IMMIGRATION & NATIONALITY Judge Samantha Ward Maria del Carmen Ramos 5K PRO BONO & Judge Lisa Campbell RIVER RUN COMMITTEE INTELLECTUAL PROPERTY Judge John Conrad COLLABORATIVE LAW Jeff Fabian & Kate Wade & Judge Chris Nash Jeremy Gluckman & Christine Hearn LABOR & EMPLOYMENT PROFESSIONALISM DeeAnna Hays & Jamie Marcario & ETHICS COMMUNITY SERVICES Joan Boles & Caroline Johnson Levine Sacha Dyson & Lara LaVoie LAW WEEK Amy Nath, Maja Lacevic PROGRAMS CONSTRUCTION LAW & Alexandra Haddad Palermo Melanie Griffin Erik Raines & Edward J. Kuchinski LAWYER MAGAZINE EDITORS REAL PROPERTY, CORPORATE COUNSEL Ed Comey & Luis Viera PROBATE & TRUST LAW Michael Stein & John Bencivenga Mike Kangas & Kristin Morris LAWYER REFERRAL & CRIMINAL LAW INFORMATION SECURITIES LAW Matt Luka & Justin Petredis SERVICE COMMITTEE Dominique Heller & Daniel P. Dietrich Robert Scanlan DIVERSITY COMMITTEE SENIOR COUNSEL Jessica Costello LEADERSHIP INSTITUTE Thomas Newcomb Hyde & Victoria Cruz-Garcia James Giardina & Katelyn Desrosiers SOLO & SMALL FIRM ELDER LAW Amanda M. Uliano Debra Dandar MARITAL & FAMILY LAW & Susan Haubenstock Seth Nelson TAX LAW Justin Klatsky & Brian Harris EMINENT DOMAIN MEDIATION & ARBITRATION Kenneth Pope & Blake Gaylord Ben Jilek & Amy Tamargo TRIAL & LITIGATION John Schifino ENVIRONMENTAL MILITARY & VETERANS AFFAIRS & LAND USE LAW Matthew F. Hall WORKERS’ COMPENSATION Erin McCormick & Gordon Schiff & Colleen O’Brien Anthony V. Cortese & Irene M. Rodriguez
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JUdge JoHN BAdALAmeNti JoiNs tHe seCoNd distriCt Appellate Practice Section Chairs: Jared Krukar - Butler Weihmuller Katz Craig, LLP; and Mariko Outman - Florida Second DCA
led him to Judge Hull the University in the grand of Florida Atlanta law school. courthouse, After Judge graduation, Badalamenti the U.S. learned the Attorney intricacies General of appellate Honors practice. Judge Program Hull herself n April, John L. Badalamenti called and had been a was appointed to the Second awarded him law clerk to District Court of Appeal by a one-year the Honorable Governor rick Scott, filling counsel Elbert P. the seat vacated by retiring position with Tuttle, for IJudge Charles A. Davis Jr. Judge the Federal whom the Badalamenti, 41, of Tampa, Bureau of historic comes to the post from the Prisons at As a boy, Judge Badalamenti courthouse Appellate Division of the Office the Southeast would sit in the courtrooms is named. of the Federal Public Defender, region To this young Middle District of Florida, where Headquarters of the southern district of lawyer, Judge he had served since 2006. The in Atlanta. New York Courthouse and Hull passed appointment to the court is the There, he was on a tradition watch criminal trials. culmination of a calling that he an advocate of mentorship first heard long ago. and advisor that she As a boy, Judge Badalamenti to the bureau, herself had occasionally took the train from handling a received from his home in Brooklyn to lunch with variety of constitutional and Judge Tuttle. his mother, a bookkeeper working civil matters and post-conviction Following that clerkship, Judge in the Southern District of new proceedings. Badalamenti returned to Florida York courthouse. Afterward, he The Eleventh Circuit Court and entered private practice. He would sit in the courtrooms and of Appeals was the next to call, found his professional home at the watch criminal trials. That early offering a clerkship with the Hon. fascination with the law eventually Frank Mays Hull. Working with Continued on page 27
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JUdge JoHN BAdALAmeNti JoiNs tHe seCoNd distriCt Appellate Practice Section
Continued from page 26 into a three-year senior law clerk discretion to act. He recognized that experience. Judge Badalamenti this discretion must be respected, St. Petersburg office of Carlton was struck by Judge roney’s deep and that only unreasonable Fields. There, his practice included love of the judicial process, the decisions should be reversed by an a mix of securities and class-action respect he showed the parties, and appellate court. Judge Badalamenti trial work and civil appeals. The the exquisite care he used in his has now answered the governor’s firm’s offices were just a few floors legal writing. call to serve on the Second away from the private office of His enthusiasm for appellate District Court of Appeal. Judge the Hon. Paul H. roney, judge practice, now thoroughly whetted, Badalamenti’s varied professional at the Eleventh Circuit Court of led Judge Badalamenti to take a background, and his long love and Appeals. Judge roney, needing an post with the Appellate Division deep respect for the law, will serve experienced law clerk temporarily of the Federal Public Defender’s the citizens of the state well for to assist with a backlog of cases, Office in Tampa. His practice years to come. The Hillsborough reached out to his colleagues on was not limited to appellate work, County Bar Association heartily the court. Judge Hull responded and he tried several cases in the welcomes Judge that such a candidate was working federal courts of the Middle Badalamenti to just a few floors away from him. District. He observed that this the court. Judge roney was the next to firsthand experience taught him call on Judge Badalamenti. Judge the challenges that trial lawyers Author: Anthony J. Badalamenti’s firm was amenable face. And he saw that trial judges Russo - Butler to what was originally intended to are called upon to make instant Weihmuller Katz be a six-month stint but turned decisions and that they need Craig LLP
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tHis YeAr for tHe CoLLABorAtive LAw seCtioN Collaborative Law Section Chairs: Jeremy Gluckman - Jeremy Gluckman, P.A.; and Christine Hearn - Himes & Hearn
We are proud With success, that our section the section is we will see has had a Pro collaboration Bono Committee dedicated to become a from its inception. promoting the common and We will be everyday means awareness and use encouraging all of of solving legal you to volunteer of the collaborative conflicts, and some of your time process in family Florida will to develop the continue to work of that law cases. be one of the he Collaborative Law committee and leading states in Section begins this year to give yourself the national and with an invitation to practice international all of our fellow Bar opportunities to strengthen your collaborative movement. members to join the section and to professional skills in collaboration. You may already know something startT learning how to resolve legal We hope to expand this work to about how the collaborative process disputes through the collaborative family law clinics at our local law uses a full team of professionals — process. Our two local family law schools this year. Volunteers will two lawyers, a mental health collaborative groups, the Tampa also be sought for those clinics. facilitator, and an experienced Bay Collaborative Divorce Group This year, we also plan to forensic financial expert — to and next Generation Divorce, have gather resources and professionals prevent married partners from continued to thrive throughout the to work with the very large becoming adversaries. But did past year, and a third collaborative percentage of middle-income you also know that this same practice group, the Florida Civil people who file pro se actions in process can be used to resolve Collaborative Practice Group, has the family law division of our trust and estate issues, employment been formed for civil practitioners circuit court. Specifically, we hope cases, or other litigation disputes? in the Tampa Bay area. We to implement a new project for Join our section (without a fee), encourage all of you to consider clients of “modest means” in an come to our luncheons, and joining one of these groups and to effort to produce more affordable become a member of one (or come to our section’s luncheons collaborative services to a broader more) of our practice groups to to enhance your knowledge of range of clients in our community. find out more about collaboration this rapidly evolving alternative to On a statewide basis, many as an alternative to battling as the adversarial legal process. The members of our section have been adversaries. It will be the first section is dedicated to promoting actively participating in efforts to step toward helping clients move the awareness and use of the pass the Uniform Collaborative forward in a positive, less collaborative process in family law Law Act in the Florida Legislature, destructive direction. cases. now we hope to help you as well as standards for Supreme add clients to your civil practice Court certification in the area of Authors: Jeremy E. Gluckman - so they can find collaborative collaborative law. Our section will Jeremy E. Gluckman, P.A.; and solutions to their legal problems continue to support that effort Christine A. Hearn - Himes & as opposed to litigating. during the 2016 legislative session. Hearn, P.A.
DO yOU HAvE AN IDEA fOr AN ArTIClE? Call (813) 221-7779 for information on article submissions.
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wiLL YoU HeLP Us rAise tHe BAr oN AdULt CiviCs edUCAtioN? Community Services Committee Chairs: Sacha Dyson - Thompson, Sizemore Gonzalez & Hearing, P.A.; and Lara LaVoie - LaVoie & Kaizer, P.A
States Supreme providing these Court. This same “An informed public presentations are survey found that eligible to earn only 42 percent is the best defense 1 CLE ethics credit of respondents of a vigorous hour for each know that serving presentation (up on a jury is a duty democracy, the rule to a total of 3 hours exclusively for of law, and a fair and per reporting United States period). Currently, citizens. impartial judiciary.” there are 10 While the presentations f you have ever watched disapproval rating available on the “JayWalking” with Jay Leno, for Congress and Constitution, the then you know there is a the Supreme Court is increasing, courts, and special topics, such as troubling deficiency in adult the Annenberg surveys demonstrate the citizenship test and voting rights. civics competency and a striking that few people understand how These presentations are easy to Ineed for education. Person after these branches of government give, interactive, and fun for both person stumbles on questions that work. This is a problem for the presenter and audience. most elementary school children lawyers. Uninformed citizens are The Community Services can answer. Last year, the less likely to vote and, more Committee is launching the Annenberg Public Policy Center importantly, less likely to support Benchmarks program in Tampa. surveyed 1,416 adults on this topic the judicial system. As lawyers, we It will be one of the five programs with astonishing results: have a duty to protect and support that the committee is hosting this • 64 percent could not name the the independence of the judiciary. year (others include Adopt a Veteran, three branches of government. One way to serve this responsibility Elves for Elders, Dining with • 35 percent could not name a is through education. Indeed, The Dignity, and a Pirate Plunder Party single branch of government. Florida Bar has recognized that at A Kid’s Place). The committee • 73 percent do not know that “[a]n informed public is the best will be planning a training session it takes a two-thirds vote of defense of a vigorous democracy, for attorneys interested in giving Congress to override a the rule of law, and a fair and Benchmarks presentations, advertis - presidential veto. impartial judiciary.” ing these presentations to local civic • 21 percent believe that a In recognition of the important and community groups, and helping 5-4 Supreme Court decision role that attorneys play in adult to match attorney volunteers with is sent back to Congress for civics education, The Florida Bar these opportunities. Won’t you come a determination. created Benchmarks: raising the be a part of implementing this Similarly, a 2011 Annenberg Bar on Civics Education, which vital program? Our first meeting survey found that nearly twice as provides presentations and activities is September 2 at noon at the many people could correctly name that attorneys can use to talk about Chester H. Ferguson Law Center. a judge on American Idol than those the government and the courts to who could correctly identify the adult civic and community groups. Author: Sacha Dyson - Thompson, current chief justice of the United Attorneys who are trained in Sizemore, Gonzalez & Hearing, P.A.
Interested in joining a section or committee? Update your online member profile at hillsbar.com.
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A defeCt witHoUt A defeNse: CHAPter 558 & CgL PoLiCies Construction Law Section Chairs: Erik Raines - Hill Ward Henderson; and Edward J. Kuchinski - Sivyer Barlow & Watson, P.A.
trigger the duty to court looked defend under the Chapter 558 is not a to dictionary pertinent CGL definitions. policy because “civil proceeding” and relying on the case was “not thus does not trigger definitions from in suit.” On the edition of an insurer’s duty to the contractor’s Black’s Law motion for defend under a typical Dictionary in partial summary CgL policy. publication when judgment on the the policies were duty to defend, in effect, the contractor receives a the court court concluded letter in the mail, and examined whether that a “civil his heart drops. Titled chapter 558 barred the insured’s proceeding” requires a forum and as a notice of Claim claim and whether the policy a decision maker. Because chapter for Construction Defect Pursuant to provided coverage. 558 provides neither, its alternative chapterA 558, Florida Statutes, the The insurer compared chapter dispute resolution mechanism did letter alleges that the contractor’s 558 to similar statutes nationwide not constitute a “civil proceeding” work on a particular project is to support its argument that a and thus was not a “suit” under defective. The notice explains the chapter 558 notice cannot the policy. The chapter 558 notice contractor’s statutorily prescribed constitute an insurance claim. therefore did not trigger the options for responding. no suit rejecting the insurer’s argument, insurer’s duty to defend, and the has been filed, though the nature of the court pointed to the statute’s court accordingly granted summary the letter suggests suit is imminent. language and concluded that judgment in favor of the insurer. remembering the commercial chapter 558 did not bar the In sum, Altman teaches that general liability (CGL) policy he insured’s claim because section while a notice pursuant to chapter purchased, the contractor tenders 558.004(13), Florida Statutes, 558 can constitute a claim for the chapter 558 notice to his provides that provision of the notice insurance, the alternative dispute insurer and demands defense and is not a claim — it does not say resolution mechanism in chapter indemnity. The insurer declines, that the notice itself is not a claim. 558 is not a “civil proceeding” and stating that the case was “not in This language differed from that thus does not trigger an insurer’s suit.” In response, the contractor contained in other states’ duty to defend under a typical sues the insurer for breach of construction-defect notice statutes CGL policy. Furthermore, when contract and a declaration that that expressly precluded such a defining a policy’s terms, the insurer has a duty to defend the notice from triggering coverage. dictionary edition in publication contractor. The Southern District The court turned next to the during the policy’s of Florida recently considered this parties’ insurance policy to effective date matter of first impression in Altman determine whether the chapter 558 should be used. Contractors, Inc. v. Crum & Forster notice was a “suit” that would Specialty Ins. Co., 2015 WL trigger the insurer’s duty to defend. Author: 3539755 (S.D. Fla. June 4, 2015). Because the policy defined “suit” Michael G. Rothfeldt The insurer in Altman argued that as the undefined term “civil - Carlton Fields the chapter 558 notice did not proceeding,” the parties and the Jorden Burt, P.A.
Have you updated your photo in the HCBA online member directory? log on to hillsbar.com today to stay connected.
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CoveriNg tHe BAsiCs oN CYBer iNsUrANCe Corporate Counsel Section Chairs: Michael Stein - CNA Insurance; and John Bencivenga - Helios
Blue Cross of the nation’s announced that largest health up to 11 million insurers, customers could said hackers have been breached a affected by a database cyber attack in that contained which hackers as many as accessed 80 million members’ A company considering records of names, dates current a cyber insurance policy t seems that a week does of birth, Social and former not pass without a story Security needs to look carefully customers, concerning some type of numbers, at the specific coverage as well as cyber attack grabbing the mailing and employees. headlines. In July, the Office of email addresses, offered, and because of As these stories IPersonnel Management disclosed phone numbers, the significant differences, continue to that hackers stole sensitive and bank multiply, more information about 21.5 million account comparison shopping by companies are people in a breach of the federal information. price may be difficult. government’s background-check In February, Continued on database. In March, Primera Anthem, one page 33
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CoveriNg tHe BAsiCs oN CYBer iNsUrANCe Corporate Counsel Section
Continued from page 32
purchasing insurance policies to protect confidential data. Here are some basics involving cyber insurance policies. 1. Cyber insurance is a fairly new product. The first policies did not appear until the late 1990s. The relative “newness” of these types of policies has at least two implications. First, there are significant coverage differences. A company considering a cyber insurance policy needs to look carefully at the specific coverage offered, and because of the significant differences, comparison shopping by price may be difficult. Second, the market is constantly changing. As new claims are reported, new risks are analyzed. So what seems like a decent policy one year may not even be offered the next. 2. In general, there are two categories of risk and liability that cyber insurance covers. There is “first-party risk/coverage,” which protects against loss or damages that your company incurs because of a cyber attack. This would include forensic investigation coverage, physical damage or data loss/restoration coverage, business interruption coverage for your computer network, and losses based on stolen/ransomed data based on a breach. There is also “third-party risk/coverage,” which covers losses or damages that occur to a third party as a result of a data breach. This would include litigation expenses, crisis management expenses, and credit monitoring and notification costs and expenses. Typically, when analyzing risks, companies will divide risk into first- and third-party coverage and then focus on the specific risks in each category. 3. Next, a company must decide how much coverage is needed. Unfortunately, there is no consensus on how much coverage to obtain, what is an appropriate deductible, or even how to determine coverage liability. Some basic benchmarking data exists. For example, some studies indicate that over the past few years, the average organizational cost of a data breach of 100,000 records (or less) was about $6 million dollars. One simple method in determining coverage limits is to focus on the amount of sensitive records a company possesses, then multiply this count by some average cost per record figure. So, if your company estimates that an average cost to respond to a data breach is $250 per record, and your company has 100,000 confidential records, a $25 million policy limit may be appropriate. 4. Finally, do your homework before purchasing cyber insurance. A breach may go unnoticed for some time before a claim is made. Counsel should consider requesting retroactive coverage to cover unknown breaches that occurred before the policy inception date. Your company may also have limited cyber coverage under your CGL policy, crime policy, or technology errors and omission policy. Coordinating these coverages is important. Finally, read the fine print. Certain exclusions may be written too broadly for your needs, and given the fact that these policies are still evolving, it is important to learn exactly what is covered to ensure your risks are properly mitigated.
Author: John W. Bencivenga - Helios
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fieLd drUg tests UNder HeAvY sCrUtiNY Criminal Law Section Chairs: Matt Luka - Trombley & Hanes; and Justin Petredi s - Law Office of Justin Petredis
Bagasra, the top up or destroys research scientist the sample at Claflin during testing. University, a lab The state must recognized by introduce the the International substance into Association of evidence unless Chiefs of Police excused by its for forensic destruction science excellence. during testing. Id. In Dr. Peterson v. State, t is common in narcotics Bagasra’s 841 So. 2d 661, cases for police to field test a experience, he 662 (Fla. 4th suspicious substance found doubts the Punk rocker don Bolles DCA 2003) during a pat-down or search. accuracy of any was once arrested for (citing G.E.G. v. The United States Supreme Court field drug test. State, 417 So. Ihas held that a chemical test that Id. Dr. Fredrik possessing gHB 2d 975, 977 n.2 merely discloses whether a Whitehurst, an after a field test. (Fla.1982)). particular substance is a narcotic FBI forensic However, in A state lab later is not a “search” subject to Fourth scientist for Peterson, the court Amendment protections. United 16 years with determined it was soap. found the state States v. Jacobsen, 466 U.S. 109, a doctorate in “introduced 123-124 (1984). And a “seizure” chemistry, stated the cocaine of a small amount of the substance he has “no into evidence” for testing is constitutionally confidence at all in those test kits.” where the state introduced a pipe reasonable. Id. at 125-26. Id. Punk rocker Don Bolles was that exhibited a blue color, and the Locally, the reliability of field once arrested for possessing GHB officer testified that the blue color tests has been confronted in a after a field test. Id. A state lab resulted from his test of cocaine. Id. series of reports by Gloria Gomez later determined it was soap. Id. Even if the narcotic is unavailable, of Fox 13 news. Gomez recounts Forensic Magazine published a sufficient evidence exists for the stories of three citizens similar article criticizing field drug conviction on a possession charge arrested on drug charges based tests titled Field Drug Tests Confuse if a chemist or expert testifies that on false field tests only to have Candy for Meth, Cause Serious Concern. he or she tested the substance and lab results clear them months Field testing is used to support the test yielded positive results. later. Scientists: Experiments show arrests, in probation revocation Fleming v. State, 82 So. 3d 967, “dangerous” field drug test problems proceedings, in support of search 970 (Fla. 4th DCA 2011). The (Fox 13 news television broadcast warrants, and as evidence of guilt. testimony of an arresting officer May 14, 2005), available at In Smith v. State, 771 So. 2d 1189 and an expert to establish the http://www.myfoxtampabay.com. (Fla. 5th DCA 2000), the defendant’s reliability of a field test could Although having the charges drug paraphernalia conviction was potentially meet that standard. dropped may have been a relief, supported only by the arresting If you would like to contact there are severe consequences officer’s testimony that an item Gloria Gomez to discuss one of associated with mere fact of an contained a residue that field tested your cases or would like more arrest. A person’s career and positive and that the item was a information on this topic, she reputation can be irrevocably device typically used as drug can be contacted at damaged, and an individual’s paraphernalia. Id. at 1192; see also [email protected]. arrest information often lives Townsend v. State, 781 So. 2d 541, online long after the case is closed. 542 (Fla. 5th DCA 2001). Gomez observed a series of false The field test takes on greater Author: Matt Luka - Trombley & positive field tests by Dr. Omar importance when the field test uses Hanes, P.A.
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HCBA WELCOMES NEW MEMBERS
JUNE AND JULY
Anisha Patel Rebbecca Goodall Zachary Karber Taylor Pierce Iden Sinai James Kannard John Haas Latasha Scott Amanda Hersem Christopher Tumminia Leonard Johnson Cristina Lemus Shirell Mosby Sheada Madani Bilal Faruqui Barbara Wolodzko Thomas McDonnell Susan Matchett Michelle Sabin Colin Abbott Adam Labonte Marc Johnson Alexander Cayer Sara Dunn Lori Heim Alexander Zesch Amanda Griffin Desiree Minder William Roberts Thomas Baker Kristin Tormey S. Jordan Miller Katharine Lawson Sienna Osta Jesse Groves James Toombs Christopher Paradies Thomas Farrior Joseph Franco Mark Howard Mercita Ramos Christy Bastian David Finlay Charles Moore Lane Cryar Kerry McGuinn Kimberly Gustafson Lindsey White Andrea Keene Chandler Bonanno Hugh Ott Patrick Rice Katherine McFarland Brendon De Souza Martin Deptula Scott Johnson Joshua Eberle Michael Frijouf Richard Huber Mark Sessums Gretchen Yale Michael McGriskin Matthew Livesay Christopher Marks Geoffrey Rice Dawn Rogers Danielle Welsch Marguerite Lowden Valerie Alou Nicholas Gaffney Philip Crowley Danielle Murray William Giltinan Etien Dozois Susan Mazuchowski Junior Ambeau Kevin Joyce Andrew Tsunis Ann Price Tyler Raiford Amy Bergen John Brewer Bryan Giribaldo Shiobhan Olivero Marci Britt Margaret Larguier Karen Fultz John Wirthlin Brett Owens Michael Finegan Benjamin Kincer Omaira Dauta Terry Kors Melissa Nerahoo-McCray Kevin Astl Brenda Holland Javier Mesa Anthony Duran Nicola Brown Nicole Dunlap Bradley Souders Christopher Hunter William Tinsley Izabela Dobson Michael Simons Adam Bugg Elliott Wilcox Anthony Gonzalez Matt Mueller Kelsie Ackman
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i HoPe YoU dANCe … Diversity Committee Chairs: Jessica Costello - Office of the Attorney General; and Victoria Cruz-Garcia - Givens Givens Sparks
omeone once told me that diversity is being invited to the party and inclusion is being asked to dance. The members of the Hillsborough someone once told me that diversity is being invited SCounty Bar Association proudly to the party and inclusion is being asked to dance. dance together and quite often. We are proud to have a great many voluntary bar associations that represent the great diversity of our profession and community. for Emanuel A.M.E Church in there is hope as we move forward. Our voluntary bar associations Charleston, S.C. Hope is shown through our lawyers have often worked together for The number of voluntary bar and professionals the greater good. not too long associations continues to grow. who embrace diversity and who ago, the HCBA, the Tampa For example, just recently, local continue to fight, both in their Hispanic Bar Association (THBA), attorneys came together to found individual and professional lives, the Hillsborough Association the Hillsborough County Lesbian for equality for all. We know that for Women Lawyers (HAWL), Gay Bisexual and Transgender by supporting one another as and the George Edgecomb Bar (LGBT) Bar Association. voluntary bar associations, we learn Association (GEBA) came together recent events have proven our from one another. to present a program titled “A country to be the embodiment of At the heart of bringing Lesson on Modern Day Slavery.” the “quilt” ideal. A combination together these bar associations, This program focused on of traditions that come together values, and ideas is the HCBA educating our members, attorneys, like patchwork to rally behind a Diversity Committee. This special and the community at large about core set of values. Our diverse committee works to improve and the devastating effects of human bar associations work toward this promote diversity in the legal trafficking in our community. In goal at a local level. At our best, profession. The committee focuses June, we joined forces again to we believe that our mission is in its work on retaining lawyers with honor Latino and African- fact uniquely American. We have diverse backgrounds and informing American veterans who fought different skin colors. We have the broader legal community about during the World War II-Korean different ideas about religious faith. issues surrounding diversity and War-Vietnam War eras, when their We look different, but at our core, inclusion. service was undermined by societal we are all American. So we invite you to join the prejudices and biases. And just Locally, our passion is for the HCBA Diversity Committee. We recently, at the annual Salsa, Soul law and our community. Certainly meet every month and collaborate & Sass event, the THBA, GEBA, the tragic events that transpired in together for unity and equality. and HAWL came together to not Charleston have reflected the worst only have a good time and for and best of our humanity, but most Author: Victoria Cruz-Garcia – fellowship but to also raise funds importantly they have shown that Givens Givens Sparks PLLC
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No ProBAte for vA fidUCiArY ACCoUNts Elder Law Section Chairs: Debra Dandar - Tampa Bay Elder Law Center; and Susan Haubenstock - Law Office of Susan Haubenstock
either before after August 7, or after Be aware, the vA is 1959, in the receipt by the personal funds beneficiary. increasing oversight of patients 38 U.S.C. of the actions of a trust fund on § 5301 veteran’s fiduciary, and account of When a VA such veteran beneficiary dies, lawyers giving advice shall not be it is general in the area are at risk paid to the practice to personal probate the for malpractice claims. representative VA fiduciary account VA fiduciary of such avoids probate despite accounts veteran, but standard thinking that to transfer shall be paid the account requires significant dollars according to the to the following persons living probate since no beneficiary testamentary intent stated in the at the time of settlement, and wasA named. will or by intestacy. By using the in the order named: The When a beneficiary is unable probate process to transfer the surviving spouse, the children to manage his or her affairs due to funds, however, the funds are (without regard to age or injury, illness, or infirmities of age, subject to claims of creditors. marital status) in equal parts, the Veterans Administration will Many estates are at risk for liens and the dependent parents of appoint a fiduciary. The fiduciary is for the cost of their care. But, much such veteran, in equal parts. bonded and reports to the VA how like the intestacy statute, the VA 38 U.S.C. § 5502(d) the funds are used. This appointment fiduciary is mandated to distribute Financial institutions have will occur despite existing powers remaining unused funds to the expressed a lack of awareness of of attorney or a guardianship order. family of the veteran. the law in this area. When brought The fiduciary role is to protect these Often, elder law attorneys will to the attention of legal counsel, funds on behalf the beneficiary. help a client avoid probate by financial institutions to date have For instance, federal law prohibits naming a beneficiary on the honored federal law and made a fiduciary from assigning benefits depository agreement of the distributions outside of probate, to a third party, and those benefits financial institution account. Due to avoiding estate claims. Providing cannot be seized by creditors: the representative payee nature of an affidavit of heirs is the proper nonassignability and exempt the VA fiduciary account, however, tool to use when requesting the status of benefits the fiduciary is not permitted to distribution of unused funds. (a)(1) Payments of benefits due name a beneficiary. Fortunately, Be aware, the VA is increasing ... under any law administered federal law specifies a distribution oversight of the actions of a by the Secretary shall not be outside of probate. veteran’s fiduciary, and lawyers assignable except to the extent When a beneficiary dies, the giving advice in the area are at risk specifically authorized by law, fiduciary shall distribute to the for malpractice and such payments made to, or spouse and, if the spouse is not claims. on account of, a beneficiary ... living, then to the children. shall be exempt from the claim In the event of the death of a Author: of creditors, and shall not be mentally incompetent or insane Jack M. liable to attachment, levy, or veteran, all gratuitous benefits Rosenkranz - seizure by or under any legal under laws administered by the Rosenkranz or equitable process whatever, Secretary deposited before or Law Firm
HAvE A COllEAGUE wHO’S NOT A mEmBEr Of THE HCBA? ENCOUrAGE HIm Or HEr TO JOIN!
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emiNeNt domAiN seCtioN weLComes its memBers Eminent Domain Section Chairs: Kenneth Pope - Hillsborough County Attorney’s Office; and Blake Gaylord - Gaylord, Merlin, Ludovici & Diaz
continuing legal sponsoring pro education credits. bono projects; Our section is we affirm our joining with pro composed of commitment to bono projects lawyers from both sponsored the private and pro bono work. by other public sectors, as Hillsborough well as members County Bar of the judiciary. Association As such, we intend to reflect those sections; offering training in areas of perspectives in the luncheon need; and hosting speakers who will s your section co-chairs, topics. In addition to having the share information about volunteer we are happy to opportunity to listen to speakers opportunities. If you have any welcome back past address various topics in the field ideas, please feel free to share them members and new of eminent domain, our members with our Pro Bono Committee members to our section. As the will have opportunities to impart representative, Angela rauber, economyA continues to pick up knowledge by publishing articles in [email protected]. steam and leave behind the the Lawyer magazine. We welcome Once again, welcome, and we recession, members of our section your input on ideas, topics, and look forward to sharing another are getting busier, which will only speakers for the luncheons. Also, year with you in the world of add to the excitement of our we are seeking volunteers to author eminent domain. increasingly popular, yet niche field articles in the Lawyer magazine. of eminent domain. This year, we affirm our Authors: Blake Gaylord - Gaylord, During the coming year, we plan commitment to pro bono work. Merlin, Ludovici & Diaz; and to host four luncheons, two of which As such, we plan to increase our Kenneth Pope - Hillsborough County will offer opportunities to earn section’s pro bono participation by Attorney’s Office
KEVIN D. JOHNSON RECOGNIZED BY FLORIDA BAR PRESIDENT
kevin d. Johnson of the law firm of thompson, sizemore, gonzalez & Hearing received a florida Bar President’s Award of merit at the florida Bar’s 65th Annual Convention in Boca raton. gregory w. Coleman, the 2014-15 florida Bar president, thanked Johnson for leading the creation of the florida Bar’s new Practice resource institute (Pri), a website that features a toolbox of technology solutions for Bar members with practice information and assistance. “this is an accomplishment that is unheard of in Bar years,” Coleman said. “the new Pri platform is one of the best member benefits we have ever created.” explore the Pri for yourself through the florida Bar’s website: www.floridabar.org
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HCBA INSTALLATION OF 2015-2016 OFFICERS & DIRECTORS Hillsborough County Bar Association President Carter Andersen and the 2015-2016 Board of directors were sworn in on June 17 during a ceremony at the Chester H. ferguson Law Center. Andersen’s law partner and mentor Jeff warren of Bush ross, P.A., introduced him, and the new HCBA president took a moment to thank all of those who had served as mentors throughout his career. outgoing HCBA President Ben Hill iv also recognized some HCBA members who had supported him during his term. Hill presented richard martin with the James m. “red” mcewen Award for his efforts in coordinating the toast & roast retirement reception for Chief Judge menendez, and he recognized Bob Nader and Lt. Col. Chris Brown for their work in leading the revamped military & veterans Affairs Committee. Chief Judge ronald ficarrotta administered the oath to the incoming HCBA as well as the Young Lawyers division board and its president, dara Cooley.
the HCBA would like to thank C1 Bank for sponsoring this great event.
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sHAriNg kNowLedge ANd CoLLABorAtive NetworkiNg Environmental & Land Use Section Chairs: Erin McCormick - Buchanan Ingersoll & Rooney PC; and Gordon Schiff - Gordon J. Schiff, P.A.
the history greatest leaders, of the port, its Building upon last year’s richard environmental Gonzmart, came events, we are looking permitting to fruition as the jurisdiction and forward to Ulele restaurant. structure, and the a new year of Our members past, present, and enjoyed a future land uses educational programs unique, fun, and activities at and luncheons, including and educational Port Tampa Bay. evening, including The next providing CLe credits. networking and e are excited to program featured socializing, within co-chair the Jim Shimberg, the beautiful Environmental & vice president beer garden and Land Use Section and general counsel for the Tampa brewery at the restaurant. for a second year. Last year, the Bay Lightning. Shimberg is also the The finale for last year was a sectionW undertook quarterly chief operating officer of Jeffrey timely legislative update recapping programs covering a wide range Vinik’s real estate company, which the Florida Legislature’s activities of topics relevant for attorneys, is developing 25 acres of land in regarding environmental and law students, and affiliate members downtown Tampa, surrounding growth management matters, with an interest in land use, Amalie Arena. Shimberg shared as well as other legislative environmental, state, and local the vision and tremendous progress developments of interest to the government issues. We appreciated that is occurring for this exciting section. This update was provided the positive response, enthusiasm, project, which will transform and by Linda Loomis Shelley, an and interest members of our section propel Tampa’s downtown and esteemed Tallahassee land-use showed for these programs. We also our community into the future. attorney with Buchanan Ingersoll welcomed participation from In February, the section hosted & rooney, who has served in members of some of the other a presentation and social at one of numerous top Florida government sections, as well as law students and Tampa’s newest and most exciting positions, including secretary of affiliate members in environmental/ projects, the Ulele restaurant. the former Florida Department land use-related professions who The program focused on the Ulele of Community Affairs and joined us for these events. Building Springs restoration, the develop - general counsel to Governor Bob upon last year’s events, we are ment of Water Works Park, and the Graham. Shelley gave an overview looking forward to a new year of next anticipated development for of key legislation that passed and educational programs and luncheons, this area, known as Tampa Heights. failed, and she discussed the 2015 including providing CLE credits. The program presenters included special session. We strive to make our section’s Catherine Coyle, planning and While we are very appreciative activities and events both fun and urban design manager for the City of the enthusiasm and growing educational. We also intend to of Tampa; Karla Price, project support for these programs, our increase participation of our members manager and landscape architect goal for the upcoming year is to in giving back to the community. for the city, who oversaw the build on last year’s events and To recap last year’s programs, Water Works Park remediation activities and to continue to the section started the year with and development; and Thomas provide programs featuring a CLE luncheon focusing on Port ries, biologist and president of interesting speakers and Tampa Bay (formerly known as Ecosphere restoration Institute, educational and timely topics. the Tampa Port Authority). Charles Inc., which undertook the We thank our existing members Klug, chief legal officer for Port restoration of Ulele Springs. (we couldn’t do this without you!) Tampa Bay, Florida’s largest and In addition to this tremendous and look forward to new members most cargo-diverse seaport, gave program, members learned about a fascinating presentation about how a vision of one of our city’s Continued on page 43
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sHAriNg kNowLedge ANd CoLLABorAtive NetworkiNg Environmental & Land Use Section
Continued from page 42 If you are interested in Use Section, and we look forward environmental and land-use issues to seeing you. joining our section. Finally, we or know someone who may want will continue to promote pro bono to join our section, we encourage Authors: Erin McCormick - work by our section members and you to get involved. Thank you Buchanan Ingersoll & Rooney PC; encourage our members to give for this honor of chairing the and Gordon Schiff - Gordon J. back to our community. HCBA’s Environmental & Land Schiff, P.A.
CONGRATULATIONS TO THE 2014-15 HCBA BAR LEADERSHIP INSTITUTE CLASS the HCBA would like to thank the institute’s sponsor:
the Hillsborough County Bar Association’s Bar Leadership institute Class held its closing reception on may 21 at the Chester H. ferguson Law Center. Congratulations to the class for all of its achievements this year. the Bar looks forward to seeing great things from these future leaders.
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LessoN from tUomeY: sHoPPers of LegAL oPiNioNs BewAre Health Care Law Section Chairs: T.J. Ferrante - Carlton Fields Jorden Burt, LLP; and Sara Younger Seifried - BayCare Health Systems
continued with because it the 19 part-time might later employment be used agreements, as evidence having obtained of improper legal advice from intent. For other counsel example, it and an FMV would be opinion from a prudent to consulting firm. consider Dr. Drakeford the concurring sharing the n July 2, the Fourth subsequently opinion found the first expert’s Circuit affirmed filed an action opinion with a $237,454,185 under the qui result in tuomey any second judgment against tam provisions “troubling,” writing expert who Tuomey Healthcare System, a of the FCA. is hired and Osmall, nonprofit hospital in Sumter, Tuomey that the stark law then asking S.C.1 The Fourth Circuit’s opinion argued that it has become a the second may be the final chapter in the did not knowingly expert to “booby trap” for decade-long legal drama that violate the explain addresses a number of significant FCA because it health care providers. the basis issues arising under the Physician reasonably relied for reaching Self-referral Law (Stark law) and on the advice of a different the False Claims Act (FCA). legal counsel. The conclusion, Beginning in 2000, a number of court rejected this e.g., changes local physicians were increasingly assertion, finding the record to be in facts since the first expert’s performing outpatient surgeries “replete with evidence indicating review, information overlooked by at their offices or at competing that Tuomey shopped for legal the first expert, or other reasons ambulatory surgery centers opinions approving of the the second opinion should be (ASCs), rather than as outpatient employment contracts, while given greater weight. hospital surgeries. As a result, ignoring negative assessments.” While it is interesting to note Tuomey was losing revenue it The court found it was reasonable that the concurring opinion found would otherwise receive from for the jury to conclude that the result in Tuomey “troubling,” the facility fees generated by Tuomey did not rely on legal writing that the Stark law has outpatient hospital services. counsel’s advice in good faith become a “booby trap” for health To stem the loss of this revenue, because the hospital refused care providers, the high penalty Tuomey entered into part-time “to give full consideration to imposed on the hospital in employment agreements with the McAnaney’s negative assessment this case likely will encourage 19 physicians. of the part-time employment both whistleblowers and the After one of the physicians, contracts and terminated his government to scrutinize and Dr. Michael Drakeford, expressed representation.” With respect to challenge the nature of financial compliance concerns about the more favorable legal opinions relationships with physicians. the structure of the proposed obtained from other legal counsel, arrangements, Tuomey sought the court observed that they were 1 United States ex rel. Drakeford v. legal advice on the contracts from issued without knowledge of the Tuomey Healthcare Sys., Inc., 2015 several attorneys — one of whom, concerns raised by McAnaney. WL4036166 (4th Cir. July 2, 2015). Kevin McAnaney, indicated that A key takeaway from this case the contracts raised “red flags” is that obtaining a second legal under the Stark law. Despite opinion or valuation opinion Author: Thomas (T.J.) Ferrante - McAnaney’s concerns, Tuomey must be done cautiously (if at all) Carlton Fields Jorden Burt, P.A.
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giviNg YoUr ALL Immigration & Nationality Section Chair: Maria del Carmen Ramos - Shumaker, Loop & Kendrick, LLP
major leagues out to arrange for had ever done emergency relief up to that point. flights carrying But what aid. But when might be he learned the surprising to aid had not some is that the reached the reason I admire victims because Clemente has the government nothing to do of nicaragua with his had diverted the hen I was young, professional first three flights, someone once accolades. As “i want to be Clemente decided asked me who my revered as to accompany sports hero was. Clemente remembered as a the fourth relief Without hesitation, I responded: was for all his baseball player who flight in the hopes robertoW Clemente. Considering professional that his presence gave all he had to give.” the fact that no other Puerto rican achievements, would ensure that athlete had achieved the same level I admire him the aid reached of admiration, respect, and love, more for his the earthquake the answer was easily accepted. actions off the victims. But as Clemente, the youngest of seven field than on the field. Indeed, it fate would have it, Clemente’s plane siblings, grew up working in the was the countless tales of Clemente’s crashed shortly after takeoff with same sugar fields as his father. generosity that turned a simple no survivors. At the time that he was drafted by man (by all accounts) into a legend Clemente’s story is a reminder the Pittsburgh Pirates, baseball was of fierce ethnic pride for me. to me that as lawyers, much has just breaking the color barrier, and Clemente spent most of his been given to us, but much is also Clemente spoke very little English. time during the off-season doing expected. It is impossible to ignore But none of that deterred Clemente. charitable works by helping people the different crises affecting us He went on to become the first (especially children) and giving (most stemming simply from a lack Latin American/Caribbean player of himself. The countless schools, of access to justice) and the need to win a World Series as a starter, hospitals, public buildings, for legal professionals to lend a receive a national League MVP monuments, and statues that bear hand. In each story, there is an Award, receive a World Series his name are a testament to his echo that reminds me that there MVP Award, and be elected to the philanthropy. But his generosity must be more to our profession Hall of Fame. During his career, was never calculated to gain than simply billing hours or making Clemente won 12 Gold Glove public or private recognition. money. This year, consider taking Awards, four national League As Clemente once said, “I want on a pro bono case. To paraphrase batting titles, and two World Series to be remembered as a baseball Clemente: We should strive to be Championships; was named to 12 player who gave all he had to give.” lawyers who gave all we had to give. All-Star Games; and reached the And giving his all he did. In 3,000-hit milestone — something response to a massive earthquake in Author: Maria del Carmen Ramos - only 10 players in the history of the Managua, nicaragua, Clemente set Shumaker, Loop & Kendrick, LLP
Have you renewed your membership? Go to hillsbar.com to stay connected.
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HoldHold youryour nextnext meetingmeeting atat thethe ChesterChester H.H. FergusonFerguson LawLaw CenterCenter The Chester H. Ferguson Law Center is an ideal location with a variety of rooms to meet your needs. Wagner Lounge Reserve for a day or for a few weeks. Convenient to downtown Tampa, the Ferguson Law Center has many amenities: • Six conference rooms of varying sizes • Complimentary AV equipment and Wi-Fi • Free, street-level parking
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Reserve your space today. Call (813) 221-7777 or email [email protected].
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PAteNt LAw BAsiCs series: toP QUestioNs ANswered, PArt i Intellectual Property Section Chairs: Jeff Fabian - Shumaker, Loop & Kendrick, LLP; and Kate Wade - Fee Jeffries
tool, either technology area. when faced It is common with a patent for a patent suit by a application to competitor or remain pending when entering for a year or negotiations. more, awaiting Q. Is a prior its turn to art search be examined. required? The examiner A. Although conducts a ven sophisticated searching is search of the companies and inventors recommended patent office’s have questions about before even sophisticated databases, basic patent issues, such preparing attempting to as what rights a patent confers and a patent companies and identify whether Ehow the patent system works. This applica tion, the same or a inventors have Q&A series addresses some of the it is not similar invention more frequently asked questions. required. questions about basic already exists. A prior art patent issues, such Communications Q. What rights does a patent provide? search can between the A. A patent concludes with a series be useful as what rights a patent patent examiner of numbered paragraphs, called to determine confers and how the and applicant “claims.” The claims define the whether it is patent system works. about what the scope of protection the patent worth the time examiner has owner is entitled to, defining and expense this Q&A series found (called the boundaries of the invention. of moving addresses some of “prosecution”) Patents confer exclusionary forward. If ensue, with rights — a patent gives its a patent the more basic, the applicant owner the right to exclude application frequently-asked having the others from making, using, is prepared, option to present selling, offering for sale, or review of the questions. arguments importing the claimed invention search results about why anywhere in the United States can help with the examiner’s for the life of the patent. To crafting claims interpretation establish infringement of a that are as broad as possible, is incorrect and/or amending patent, every element of while distinguishing over the the claims to distinguish a claim must be found in the art. There are professional over the art. Once (and if) accused device, product, or searchers available, but it is agreement is reached, the process, either literally or by also possible to search on applicant pays the issue fee, a substantial equivalent. your own, using basic Internet and the patent office will Instead of preventing others word searches and searching issue a United States patent. from practicing the patented the patent office website Q. Is there anything I can do to invention in the United States, (www.uspto.gov). speed this up? a patent owner may wish to Q. How does the patent A. One option is to file a Track license the patent to others by examination process work? One request upon filing of charging a royalty or licensing A. Once a patent application the application. There are fees fee for allowing others to is filed, it is assigned to a involved (which are currently practice the invention. Patents patent examiner responsible may also be used as a bargaining for patents in a particular Continued on page 49
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PAteNt LAw BAsiCs series: toP QUestioNs ANswered, PArt i
Continued from page 48
about $4,000 in addition to the regular filing fees), and there are certain requirements and limitations to be met, but if granted, the Track One request can drastically expedite the examination process. The current patent office goal is to issue a final disposition ABRAHAM LINCOLN AWARD within 12 months of J. meredith wester has received the 2015 Abraham Lincoln Award prioritized examination being granted. from the tampa Bay American inn of Court. the annual award honors the member who best exemplifies the goals of the inn in promoting legal excellence, civility, professionalism, and ethics in the practice of law. Author: wester was one of the founding members of the tampa Bay inn of Court Kristin Crall - in 1993. she is a shareholder at mechanik, Nuccio, Hearne & wester, P.A., Kilpatrick where she concentrates her practice in commercial litigation. Townsend & Stockton LLP
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2015 sCotUs ACAdemY NomiNees (roUNd 1) Labor & Employment Section Chairs: DeeAnna Hays - Ogletree, Deakins, Nash, Smoak & Stewart, P.C.; and Jamie Marcario - Greenberg Traurig, P.A.
Those her individual representing sCotUs may use claim or whether businesses that face her claim, along class or collective this case to reinstate with the putative actions should the once-demanding class action, keep a close watch survive the offer’s on this one. In an standards for obtaining expiration. Given environment in class certification. the prominent role which lower courts mootness plays often permit class in the growing certification, number of employ - o you thought you had regardless of class member ment class actions, if the decision seen it all when SCOTUS differences, SCOTUS may use turns on this issue, lawyers must issued several blockbuster this case to reinstate the once- get up to speed quickly about its employment rulings in demanding standards for obtaining implications for employment clients. the 2014 term? Think again. In class certification. If you would like to nominate Sthe 2015 term, SCOTUS will The nominee for “most other “must watch” decisions or consider more “must watch” consequential” is Campbell-Ewald emerging employment issues that cases with potentially significant Co. v. Gomez, no. 14-857, which should make the Labor & employment implications. will consider “[w]hether a case Employment Section’s list this year, Of these, the nominee for becomes moot, and thus beyond please drop us a line. (Or better yet, “most classy”1 is Tyson Foods Inc. the judicial power of Article III, offer to write an article.) v. Bouaphakeo, no. 14-1146, which when the plaintiff receives an offer may prove to be an epic decision of complete relief on her claim” 1 Pun intended. on the standards for class under rule 68 and, if so, whether 2 See Gomez v. Campbell-Ewald Co., certification. In Tyson, the court a case remains moot when the 768 F.3d 871 (9th Cir. 2014). will consider the requirements for plaintiff “has asserted a class claim 3 Compare Stein v. Buccaneers Ltd. class certification under rule 23 under ... rule 23, but receives an P’ship, 772 F.3d 698 (11th Cir. 2014) and collective actions under offer of complete relief before the (rejecting mootness) and Lucero v. Bureau Section 16(b) of the Fair Labor class is certified.”2 of Collection Recovery, Inc., 639 F.3d Standards Act. It will decide: (1) Although Campbell-Ewald Co. 1239 (10th Cir. 2011) with Warren v. whether differences among class arises under the Telephone Sessoms & Rogers, P.A., 676 F.3d 365 members may be ignored, and a Consumer Protection Act, a decision (4th Cir. 2012) (holding offer moots class certified, when plaintiffs use could have serious ramifications for claim) and Weiss v. Regal Collections, statistical techniques that presume employment class actions. A ruling 385 F.3d 337 (3d Cir. 2004). class members to be identical; and may settle a circuit split3 and a 4 Genesis Healthcare Corp. v. Symczyk, (2) whether a class that contains Supreme Court split4 over whether 133 S. Ct. 1523 (2013). hundreds of members who offers of judgment under rule 68 suffered no injury and have no that are equal to or greater than a Author: Jamie Marcario - Greenberg damages claims may be certified. plaintiff ’s statutory damages moot Traurig, P.A.
Interested in joining the HCBA lawyer referral & Information Service? Call (813) 221-7780.
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UNtiL deAtH do Us PArt Marital & Family Law Section Chair: Seth Nelson - Seth Nelson, P.A.
and retirements, loses its joint assets, and if the dissolution has jurisdiction assets in revocable over the matter. trusts).1 The elective not been finalized with At that time, share does not a judgment and a the now apply to irrevocable estranged but transfers that spouse dies, then the still legal spouse occurred prior parties are treated as may petition the to the date of if they are still married. probate court marriage or before to be appointed October 1, 1999. as personal general rule is that To circumvent representative when a person makes the elective share, and make his a will, he or she is able the parties should execute a or her election to take the elective to direct who receives prenuptial or antenuptial agreement share. notwithstanding the elective property after his or her death. that specifically references a waiver share, the surviving spouse may However,A in Florida, it is difficult of homestead and elective share also have an entitlement to the to disinherit a spouse regardless of rights. In addition, the antenuptial homestead protection and a family whether the parties are separated agreement requires a full and allowance of up to $18,000.4 or dissolving their marriage at the complete disclosure of the parties’ In total, a decedent may not time of death. If the dissolution assets and financial statements. successfully and completely has not been finalized with a In the probate context for the disinherit a spouse without a valid judgment and a spouse dies, then waiver of homestead and elective agreement or waiver. Florida’s the parties are treated as if they share, no financial disclosure is probate laws regarding elective are still married. The surviving required for agreements executed shares are complex, and an spouse is entitled to a percentage prior to the marriage.2 Further, experienced probate attorney of the deceased spouse’s estate in no consideration other than the should be used to determine the what is known as the elective share. execution of the agreement or rights of both the estate and A person cannot unilaterally waiver is necessary for its validity, surviving spouse. disinherit a spouse. The elective whether executed before or after share provides a measure of the marriage.3 1 § 732.2065, Fla. Stat. financial protection for a surviving If a married couple in the midst 2 § 732.702(2), Fla. Stat. spouse who has been disinherited. of a dissolution of marriage cannot 3 Id. Under current Florida law, a agree to a marital settlement 4 See §§ 732.401, surviving spouse may elect to agreement, the couple will likely .403, Fla. Stat. receive an amount of money not agree to signing a reciprocal that is equal to 30 percent of agreement waiving entitlement to Author: the decedent spouse’s estate, each other’s estates. If the parties Kristi McCart - which includes nonprobate assets cannot reach an agreement and a Sosa Law (such as life insurance, pensions spouse dies, the family law court Office, P.A.
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workiNg to eNHANCe ANd BUiLd UPoN mvAC’s missioN Military & Veterans Affairs Committee Chairs: Matthew F. Hall - Hill Ward Henderson; and Colleen O'Brien, 13th Judicial Circuit
we pledge to work hard to continue to connect s we seek to build on our Bar association with our active-duty, reserve, guard, the outstanding work of the Military & and veteran community in tampa Bay. Veterans Affairs Committee (MVAC), we would likeA to thank Bob nader, Lt. Col. Christopher Brown, and Ben Hill need of legal assistance with lawyers The MVAC also has an IV for their guidance and leadership wanting to assist them. We currently education component to its in transforming the former Military have 17 areas of law where local tripartite mission statement. Liaison Committee into MVAC. attorneys have committed to support Last year, we conducted three We pledge to work hard to continue those who have served our nation. well-received CLEs, and we intend to connect our Bar association with The list is available at tinyurl.com/ to continue providing CLE credits, our active-duty, reserve, guard, and veteranslegalregistry. If you would including significant ethics credits. veteran community in Tampa Bay. like to be added to the registry, This year, we look forward By way of introduction, MVAC please contact us. Additionally, to working with the HCBA’s leadership is composed of our MVAC and other HCBA attorneys other committees and taking military liaison, Lt. Col. Brown, volunteered at community “Stand advantage of the MVAC’s diverse the staff judge advocate at MacDill Downs” and similar events to membership. We hope to capitalize Air Force Base. Our emeritus chair respond to veterans’ legal questions on Colleen’s involvement in the is Bob nader. Bob is the son of a and provide registry referrals. YLD to connect young lawyers WWII veteran. He continues to Another way the MVAC assists with more experienced lawyers provide the committee with heart, veterans is through the Hillsborough to benefit both committees and dedication, energy, and great ideas. County Veterans Treatment Court to extend the MVAC’s reach into Co-Chair Colleen O’Brien has (VTC). The VTC recently expanded specific practice areas. several family members who served from misdemeanors and ordinance We invite you to attend an in the military. She is familiar with violations to also include felonies. MVAC meeting or volunteer for and has a deep respect for what it That change resulted in the court an event. The MVAC is open to means to serve. Finally, Co-Chair going from about a dozen defendants all attorneys, regardless of military Matthew Hall enlisted in the U.S. to more than 40 in less than six experience. Our mission is to serve Army Infantry at 17 and deployed months. A unique facet is the VTC’s those who have served this great to Iraq in 2003. The diverse mentoring system ably led by MVAC nation. We look forward to another backgrounds of the MVAC leaders member and retired U.S. Army great year of assisting veterans in are representative of the diverse Col. D.J. reyes. The defendant is our community. We welcome your members of the MVAC who came assigned a battle buddy with military ideas and hope you will join us on together to make this committee experience to support the veteran this important mission. strong, despite its young age. as he or she progresses through the Last year, a significant MVAC VTC program. Several MVAC Authors: Matthew F. Hall - Hill project was creating the Veterans members serve as mentors in this Ward Henderson; and Colleen O’Brien Legal registry to connect veterans in rewarding program. - Thirteenth Judicial Circuit
5 2 SEPT - OCT 2015 | HCBA LAWYER HONORING AFRICAN-AMERICAN AND LATINO-AMERICAN VETERANS
Roughly 150 judges, attorneys, and community leaders gathered on June 16 for an event to pay tribute to African-American and Latino-American veterans who served their country during the World War II-Korean War-Vietnam War eras. The event, hosted by the Tampa Hispanic Bar Association and the George Edgecomb Bar Association, took place at the Sam Gibbons Federal Courthouse and was put on with generous support from the Tampa Bay Federal Bar Association, the Hillsborough Association for Women Lawyers, and the Trial & Litigation Section of the Hillsborough County Bar Association. Promotional support was also given by the HCBA’s Military & Veterans Affairs Committee. The intent of this program was to honor those brave and thoughtful patriots who represented the best of American values.
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FAMILY LAW / PERSONAL INJURY
For years you have been trusting us with your clients, family and colleagues. This year, we welcome Rick Alvarez to our team.
We are always here when you need us.
tWWW.OLALAW.COM 3014 West Palmira Ave, Suite 202, Tampa, Florida 33629
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wHAt is YoUr ProfessioNALism QUotieNt? Professionalism & Ethics Committee Chairs: Joan Boles - Bay Area Legal Services; Caroline Johnson Levine - Office of the Attorney General
838 (Fla. 2015), was found guilty elucidates how An attorney’s of violating several quickly a 20-year rules and was legal career, with “professionalism disbarred by the the attainment of quotient” (PQ) is Florida Supreme board certification Court for one year. important to cultivate in real estate law, “Professionalism” can be dismantled in a profession that is a word that is over malfeasance protects clients and frequently extolled in one single case. by attorneys. lack of professionalism Zana Dupee the rule of law. However, it can can have wide-ranging represented a wife sometimes appear consequences for in a dissolution to be an elusive an attorney, and of marriage ideal in practice disciplinary sanctions can be severe. proceeding. The as we dwell in a ProfessionalismA may be an easy wife owned a credit union account world that appears to be losing concept in theory; however, it can in her name only, which contained its hold on civility. Oftentimes in become challenging in practice. a large amount of funds. Dupee the legal field, one’s intelligence Overwhelming caseloads, conflicts advised the wife that this account quotient (IQ) is celebrated. with distressed clients, and should be closed and a cashier’s However, an attorney’s challenging communications from check should be issued in the name “professionalism quotient” (PQ) opposing counsel can sometimes of a non-existent charitable trust. may be more important to cultivate create unexpected pitfalls for an “Because the named payee was in a profession that protects clients attorney. Importantly, attorneys fictitious and the check was never and the rule of law. must consider that professionalism negotiated, the money represented Dupee clearly demonstrates is intractably tied to the ethical by the cashier’s check remained the that it is critical for attorneys to rules regulating The Florida Bar. property of [Dupee’s] client.” Id. continually develop and guard Pursuant to its constitutional at 841; see also § 673.4041(2), Fla. their professionalism skill set. One authority, the Florida Supreme Stat. (2014). During the course of the best methods for attorneys Court routinely issues disciplinary of litigation, Dupee submitted the to grow and improve their PQ is decisions regarding unprofessional wife’s false financial affidavit and to join and actively participate behaviors exhibited by some did not timely or truthfully respond in the Hillsborough County Bar attorneys. See Art. V, § 15, Fla. to discovery requests. Finally, Association! Participating in the Const. These decisions, which Dupee personally secreted away the HCBA’s various sections and demonstrate the court’s authority to husband’s treasured coin collection, committees can lead to service regulate the Bar, can be viewed on which the husband obtained in the opportunities in unexpected ways the Florida Supreme Court website final judgment. Dupee “did not and create exposure to countless at www.floridasupremecourt.org/ disclose that she had the coins examples of excellent leadership. decisions/opinions.shtml. A until she was ordered to produce recently issued decision in The them in a postjudgment contempt Author: Caroline Johnson Levine - Florida Bar v. Dupee, 160 So. 3d proceeding.” Id. at 843. Dupee Office of the Attorney General
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two federAL CoUrts rULe oN stAtUte of LimitAtioNs wHiLe BArtrAm AwAits deCisioN Real Property, Probate & Trust Law Section Chairs: Mike Kangas - Philip A. Baumann, P.A.; Kristin Morris - Shutts & Bowen
all conditions Florida’s to accelerate appellate the loan. districts are But that currently split foreclosure on this issue. action was The Fourth ultimately DCA takes dismissed the same view because the as Bartram. bank failed See Evergrene to appear Partners, Inc. he Florida Supreme at a pre-trial summerlin and stern are v. Citibank, Court recently granted conference. N.A., 143 So. certiorari in Bartram v. Bartram not binding, but they … 3d 954 (Fla. U.S. Bank, N.A., 140 later filed a do provide some guidance 4th DCA So. 3d 1007 (Fla. 5th DCA 2014), declaratory 2014). The cert.T granted, to consider whether judgment until the florida supreme Third DCA, a mortgage foreclosure action was action seeking Court decides Bartram. however, takes time-barred where it was brought a declaration the opposite more than five years after an earlier that any claim view. In foreclosure action, which sought to under the Deutsche accelerate a note, was dismissed mortgage was Bank Trust without prejudice. In the meantime, time-barred since more than five Co. Americas v. Beauvais, the Third two federal district courts have years had passed since the bank DCA held that dismissal without ruled on that very issue: the accelerated the loan. Bartram prejudice of a foreclosure action in Southern District of Florida in essentially took the position that which a mortgagee sought to Summerlin Asset Management V statute of limitations begins to run accelerate a loan does not function Trust v. Jackson, 2015 WL 4065372 from the date of acceleration and to decelerate the loan. That holding (S.D. Fla. Jul. 2, 2015); and the expires five years from that date is significant because the statute Middle District of Florida in Stern unless the mortgagee takes some of limitations continues to run on v. Bank of America Corp., 2015 WL act to decelerate the loan. And all payments accelerated (i.e., the 3991058 (M.D. Fla. Jun. 30, 2015). the mere voluntary dismissal of entire loan amount), and the failure The decisions in Summerlin and a foreclosure action does not, by to bring suit within five years of Stern may provide some guidance itself, decelerate the loan. The acceleration will bar any subsequent for courts until the Florida Fifth DCA, relying heavily on the suit unless the mortgagee has Supreme Court’s decision in Florida Supreme Court’s decision affirmatively decelerated the note. Bartram, which is set for oral in Singleton v. Greymar Associates, This conflict is concerning. argument in november. 882 So. 2d 1004 (Fla. 2004), held recently, two federal courts In Bartram, U.S. Bank sued to that the bank’s prior acceleration of have provided some insight into foreclose its mortgage because the loan did not trigger the statute how the Florida Supreme Court Bartram defaulted on his loan of limitations with respect to the may resolve the split among the obligations to the bank. According accelerated payments. 140 So. 3d to the court, the bank had satisfied at 1010-11. Continued on page 59
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two federAL CoUrts rULe oN stAtUte of LimitAtioNs wHiLe BArtrAm AwAits deCisioN Real Property, Probate & Trust Law Section
Continued from page 58 the Summerlin court noted that (quoting Evergrene Partners, 143 So. Beauvais is essentially the lone 3d at 965). Of course, the decisions districts. In Summerlin, the Southern exception to that rule. Stern in Summerlin and Stern are not District of Florida, acknowledging likewise concluded that Beauvais binding, but they are enlightening the split among the Florida is “contrary to the overwhelming and do provide some guidance appellate districts, observed, after weight of authority.” 2015 WL until the Florida Supreme Court a careful review of the case law, 4065372, at *3. And Stern, like decides Bartram sometime after that the “vast majority of state and Summerlin, relied on the Fourth oral argument federal courts in Florida have DCA’s decision in Evergrene Partners in november. found” that a “mortgagee’s prior for the proposition that where exercise of its right to accelerate all a prior foreclosure action was payments and bring a foreclosure dismissed without prejudice, Author: action will not begin the limitations “any acts of default still within Jennifer Lima- period as to the entire mortgage.” the statute of limitations may be Smith - Gilbert 2015 WL 4065372, at *5. In fact, raised in a subsequent suit.” Id. Garcia Group P.A.
‘LET’S TALK LAW’ RADIO SHOW KICKS OFF
HCBA members learned a lot about creating a radio show from the professionals at moneytalk, 1010 Am. if you’re interested in being part of the “Let’s talk Law” radio show, contact renee montefusco at (727) 365-4346, and be sure to tell her you’re an HCBA member!
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PLAUsiBLe ALLegAtioN of AmoUNt iN CoNtroversY is sUffiCieNt for removAL Securities Law Section Chairs: Dominique Heller - Wiand Guerra King; and Daniel P. Dietrich - Burr & Forman
elements are district court required: (1) the notice of removal explained that minimal diversity, the defendants meaning at least need include only a were obligated one plaintiff and plausible allegation to allege all one defendant necessary must be citizens that the amount in jurisdictional of different states, controversy exceeds facts in the notice (2) the proposed of removal, not the jurisdictional class must have at in response to a least 100 members, threshold. motion to remand. n any state-court-filed matter, and (3) the amount The issue one of the first issues that in controversy must made its way to defense counsel analyzes is exceed $5 million. the United States whether the case can be 28 U.S.C. Supreme Court, removed to federal court. When § 1332(d)(2), (6). where the court held that, under Iremoval is based on diversity In Dart Cherokee, the defendant 28 U.S.C. § 1446(a), a defendant’s jurisdiction, the amount in removed the action to federal notice of removal need include controversy becomes an issue and court and alleged in the notice only a plausible allegation that the defendant, as the party seeking that the amount in controversy the amount in controversy exceeds removal, bears the burden of was over $8 million, well above the the jurisdictional threshold. The establishing jurisdiction. In the $5 million jurisdictional amount. notice need not contain evidentiary not-so-uncommon scenario where The plaintiff moved to remand, submissions. The court further the plaintiff has not pled a specific which the district court granted explained that a plaintiff ’s amount- amount of damages, what is the since the notice of removal failed in-controversy allegation invoking defendant to do? Does the to provide any evidentiary support federal-court jurisdiction is defendant have to merely allege for the $8 million figure. Specifically, accepted if made in good faith, jurisdictional facts to support the district court explained that and the amount-in-controversy removal, or does the defendant while a plaintiff cannot avoid allegation of a defendant seeking have to submit evidence to support removal merely by declining to federal-court adjudication should the amount in controversy? allege the jurisdictional amount, be accepted when not contested The United States Supreme the defendant must support the by the plaintiff or questioned by Court addressed the issue in Dart amount in controversy with the court. If the plaintiff does Cherokee Basin Operating Co., LLC factual evidence rather than mere contest the allegation, the parties v. Owens, 135 S. Ct. 547 (2014). assumption or speculation. For will be entitled to submit proof, The underlying matter involved the example, the defendant can use and the court will decide. In the Class Action Fairness Act of 2005 discovery methods or affidavits to notice though, plausible allegations (CAFA), which outlines the federal support the jurisdictional amount. are sufficient. courts’ diversity jurisdiction over In Dart Cherokee, the defendant did class actions. To establish federal not submit any evidence to support Author: Daniel P. Dietrich - Burr & jurisdiction under the CAFA, three its notice of removal, and the Forman, LLP
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A Brief HistorY of LegAL etHiCs Senior Counsel Section Chair: Thomas Newcomb Hyde, Attorney at Law
were eventually In 1983, the expanded to it is from the example ABA approved 47 canons, Model Rules of more senior attorneys the including of Professional Confidences that today’s younger, Conduct, which of a Client less experience lawyers were adopted (Canon 37).4 in Florida in However, can create an ethical 1986. These the Canons of foundation for a legal Florida Rules Professional of Professional Ethics were profession which promotes Conduct, which enior lawyers in the not an effective civility and honesty among closely follow Hillsborough County Bar teaching its members, as well the model Association have the instrument and rules, consist of opportunity to provide failed to give as respect for the approximately an example for legal ethics and guidance to community at large. 60 rules each Sprofessionalism for other lawyers young lawyers followed by a in the Thirteenth Judicial Circuit. beyond the comment section.9 For inspiration, experienced lawyers language of Thus, it is the often look to the American Bar the canons Florida Rules of Association (ABA), which has themselves.5 So in 1964, then Professional Conduct that now provide provided leadership in legal ethics ABA President and later Supreme lawyers with the essential guidelines and professional responsibility for Court Justice Lewis F. Powell Jr. for ethical behavior in Florida. Just over 100 years, through the created a special committee to as importantly, it is from the example adoption of professional standards evaluate ethical standards. That of more senior lawyers that today’s as models of appropriate conduct.1 committee produced the Model younger, less experienced lawyers In 1908, the ABA adopted the Code of Professional Responsibility, can create an ethical foundation Canons of Professional Ethics based which was adopted in 1969 and for a legal profession that promotes principally on the Code of Ethics subsequently approved by the civility and honesty among its that had been previously adopted vast majority of state and federal members, as well as a respect for by the Alabama Bar Association.2 jurisdictions.6 The code acquired the community at large. The Preamble to the Canons sets the force of law only when it the tone for the conduct of lawyers was adopted in a jurisdiction by 1 Model Rules of Professional Conduct, in the United States. “The future a state authority, typically the at ix (Am. Bar Ass’n 2012). of the republic ... depends upon state’s supreme court.7 2 Id. our maintenance of Justice pure The code had nine broad canons, 3 Canons of Professional Ethics, at 1 and unsullied.” “It cannot be so including: A Lawyer Should Preserve (Am. Bar Ass’n 1908). maintained unless the conduct the Confidences and Secrets of a 4 Id. 5 and the motives of the members of Client (Canon 4); A Lawyer Should Model Code of Professional our profession are such as to merit Exercise Independent Professional Responsibility, at x (Am. Bar Ass’n 1985). 6 the approval of all just men.”3 Judgment on Behalf of a Client Model Rules of Professional Conduct, at The 32 canons, among other (Canon 5); A Lawyer Should ix (Am. Bar Ass’n 2012). 7 things, touched on: The Duty of represent a Client Competently Charles W. Wolfram, Modern Legal Ethics Lawyers to the Courts (Canon 1); (Canon 6); and A Lawyer Should 56 (West 1986). 8 Model Code of Professional Adverse Influences and Conflicting represent a Client Zealously within Responsibility (Am. Bar Ass’n 1986). Interests (Canon 6); restraining the Bounds of the Law (Canon 7). 9 Rules Regulating the Florida Bar, Parties from Improprieties (Canon Following each canon were Ethical Chapter 4 (2013). 16); Candor and Fairness (Canon Considerations, which were 22); and Upholding the Honor of aspirational, and Disciplinary Author: Thomas Newcomb Hyde, the Profession (Canon 29). These rules, which were binding.8 Attorney at Law
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MEDIATION
Helping You Get to Yes Insurance Coverage Disputes Errors & Omissions Claims Reach out to Woody Isom when you Property Claims need a mediator, arbitrator or special Business Interruption magistrate/master. Certified Circuit Civil Extra Expense and Federal Mediator since 1993, Board Health Disability Certified Civil Trial Lawyer with both Personal Injury insurance defense and plaintiff experience. Wrongful Death Auto/Motorcycle [email protected] Premises Liability www.IsomMediation.com Commercial Litigation Nursing Home (813) 629-6388 Medical Malpractice P.O. Box 320461, Product Liability Tampa, FL 33679-2461 Aviation
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soLo & smALL firm PrACtiCe - LiviNg sHiNgLe Solo & Small Firm Section Chair: Amanda M. Uliano - Law Office of Amanda M. Uliano, P.A.
practitioners, we Beyond are sometimes Build that imperative education, our expected to be a meetings will jack of all trades — network of provide us the even if it takes competent and opportunity to us out of our get to know each trustworthy preferred comfort other and build zones. With that colleagues that every that imperative in mind, the lawyer needs. network of overarching theme competent and for this year’s Solo trustworthy elcome to the start & Small Firm colleagues that of a new year for Section will be every lawyer needs the Solo & Small focused on those — a social setting Firm Section of practice management and to learn from and with each other the Hillsborough County Bar substantive issues that every solo so we are not really traveling this Association.W I am excited to be and small firm lawyer should have road “solo.” We will also explore taking the helm this year, and I working knowledge of. ways to work as a section to thank my predecessors, especially We will have five lunch meetings support our community and the James Schmidt, for their dedication this year, each with an informative Thirteenth Judicial Circuit’s pro to our section and the HCBA as CLE presentation. As technology bono initiatives. I welcome your a whole. changes, so does the practice of thoughts and suggestions as to Unlike other sections and law, and we will explore practice how our section can work best committees of the HCBA, the Solo management issues in this new age, to accomplish our group and & Small Firm Section encompasses including the ins and outs of a individual goals. a truly diverse membership, with virtual law practice. With changing Whether you are a current solo practitioners in a variety of times, however, come evolving or small firm practitioner or are substantive law areas and practice issues in ethics and professional contemplating making that step, settings. Although this can responsibility, and we will discuss I hope you will join us this year. sometimes present a challenge those most pressing concerns facing I look forward to working with all when defining ourselves, our our practice today. We will also look of you to grow and strengthen our diversity affords us a unique at substantive issues affecting our businesses and our Solo & Small opportunity to grow our businesses clients, and perhaps ourselves, Firm Section of the HCBA. in new and unexpected ways including bankruptcy and judgment through collaboration and collection, intellectual property, and Author: Amanda M. Uliano – Law education. As solo and small firm estate planning. Office of Amanda M. Uliano, P.A.
ArE yOU yOUr OwN Pr PErSON? Share your achievements in the lawyer magazine’s Around the Association column by emailing [email protected].
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tHe Never-eNdiNg storY - CiviL ANd CrimiNAL stAtUtes of LimitAtioNs for tAx frAUd Tax Law Section Chairs: Justin Klatsky - Owens Law Group, P.A.; and Brian Harris - Akerman
return. Having and in the Second created a Circuit, City Wide deceitful, Transit, Inc. v. and often Commissioner, 709 convoluted, F.3d 102 (2d Cir. scheme to 2013). Conversely, evade taxes, this argument the taxpayer’s has been rejected complaints about by the Court of an unlimited Federal Claims. period for BASR Partnership hen is it safe? assessment might this article provides v. United States, Clients with ring hollow. A 113 Fed. Cl. 181 a basic discussion of concerns about less intuitive (Fed. Cl. 2013).1 possible fraud on and more select civil and criminal From a their tax returns from a prior year problematic statutes of limitations criminal needW to be aware of the pertinent scenario arises standpoint, the statutes of limitations. This article when the tax for tax fraud. most common provides a basic discussion of return filed was federal tax crimes select civil and criminal statutes fraudulent but have a six-year of limitations for tax fraud. On the taxpayer did statute of the civil side, the IrS may have not personally limitations. I.r.C. three years, six years, or forever know of the fraud. This could arise § 6531. However, there are several to assess a tax liability, along with if a return preparer includes events that could arguably extend corresponding penalties and fraudulent items on a tax return the criminal statute well beyond interest, on a given tax return. without the explicit knowledge or six years after filing of the return. The general rule is that any tax consent of the taxpayer. It also Those events include post-filing “shall be assessed within 3 years could arise where a taxpayer, acts of evasion by the taxpayer or a after the return was filed.” I.r.C. relying on advice from a tax conspirator, summons enforcement § 6501(a). Under Section 6501(e), professional, used a tax reduction proceedings, government requests if the taxpayer omitted certain strategy that was later determined for foreign evidence, and, in some items from the return, such as more by the IrS to be fraudulent. cases, acts of Congress declaring than 25 percent of gross income, Whether the IrS will be entitled war or authorizing the use of the IrS has up to six years to assess to use the unlimited statute where military force. the tax. An even more generous the “fraud on the return” was extension applies in cases of a perpetrated by a third party is 1 The government appealed the “false or fraudulent return with currently unsettled. The BASR ruling to the Federal Circuit, the intent evade tax” or a willful government has taken the position where the parties attempt to evade tax. In both cases, in different forums that the presently await a the IrS can assess the tax “at unlimited statute should apply even ruling. any time.” I.r.C. § 6501(c)(1)-(2). where the fraud was committed by This exception to the three-year a third party. The government has statute of limitations for assessment prevailed with variations of this Author: Matt is intuitive where the taxpayer argument in Tax Court, Allen v. Mueller - Wiand intentionally filed a fraudulent tax Commissioner, 128 T.C. 37 (2007), Guerra King P.A.
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YoUNg LAwYers AdvoCAte for tAmPA BAY’s HomeLess YoUtH Thirteenth Judicial Circuit Pro Bono Committee Chair: Rosemary Armstrong - Crossroads for Florida Kids
n May, hundreds of young lawyers from across the country descended upon Almost 40 percent of the homeless population the Tampa Bay area for the American Bar Association in the United states is younger than 18. IYoung Lawyers Division’s Annual Spring Conference. As part of the conference, many of those attorneys planned and free legal advice to approximately conference held a luncheon program, implemented an outreach project 45 homeless and transitional youth, “The Faces of Homeless and that left a lasting impact on the helping them with a range of Transitional Youth: A Call to Action,” Tampa Bay community. Homeless challenges. Clinic volunteers which opened with the screening and transitional youth benefitted addressed issues including questions of a short documentary featuring from two free legal clinics through about public assistance and govern - homeless and transitional youth Project Street Youth — one at ment benefits, landlord and tenant followed by a panel discussion led Metropolitan Ministries and issues, credit questions, domestic by advocates for homeless youth the other at Seminole Heights violence, custody matters, education who shared their experiences and Charter School. concerns, expungement of criminal described some of the many ways Homelessness affects more than records, taxes, small business loans, young lawyers can take action 1.7 million youth in the United employment discrimination, labor to help. States, and that number is growing violations, personal injury claims, For those interested in learning with each passing year. Almost and emancipation — just to name more, visit: www.ambar.org/ 40 percent of the homeless a few! Each of the homeless or projectstreetyouth. population in the United States transitional youths was also given For information on ways you is younger than 18. Project Street a backpack with necessities such as can get involved with Tampa Bay Youth is a project of the ABA toiletries and other personal items. pro bono opportunities, contact YLD’s Public Service Team in Bobby Smith, principal of rosemary Armstrong, chair of partnership with the Center on Seminole Heights Charter School, the Thirteenth Judicial Circuit Pro Children and the Law and the reported that “our students greatly Bono Committee, at rosemary@ Commission on Homelessness and enjoyed and certainly benefitted crossroadsfloridakids.org, or visit Poverty. The program’s goal is to from the legal clinic.” We could not www.hillsbar.com/?page=ProBono provide access to justice for homeless have held one clinic — much less for more and transitional youth by educating two — without the amazing support information on and raising awareness of the issue, of the ABA YLD Tampa Bay Host volunteer legal promoting effective legislation, and Committee and the Florida Bar organizations. providing free legal clinics. Young Lawyers Division, which At the clinics here in the Tampa donated $1,000 to the clinics. Author: Cathy Bay area, more than 15 young In conjunction with the Project Kamm – Shook, lawyers volunteered and provided Street Youth clinics, the ABA YLD Hardy & Bacon
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v SEPTEMBER 16 Membership Luncheon featuring ramon Abadin, president of The Florida Bar noon, Tampa Marriott Waterside v OCTOBER 16 YLD Golf Tournament, Temple Terrace Golf & Country Club v OCTOBER 27 Bench Bar Conference, Membership Luncheon & Judicial reception, Hilton Tampa Downtown v DECEMBER 3 Holiday Open House, Chester H. Ferguson Law Center v JANUARY 19 Diversity Membership Luncheon, Hilton Tampa Downtown v FEBRUARY 13 Diversity networking Social, Chester H. Ferguson Law Center v MARCH 5 Judicial Pig roast/Food Festival & 5K Pro Bono river run On the grounds of Stetson Law Tampa Campus
Learn more about HCBA events at www.hillsbar.com. stay Connected
JUDICIAL PRO BONO SUMMIT PLANNED FOR OCTOBER
the thirteenth Judicial Circuit Pro Bono Committee will host a Judicial Pro Bono summit to coincide with and kick off local pro bono events during National Celebrate Pro Bono week, which runs october 25-31. the summit will be held at the Chester ferguson Law Center on october 26 at noon. the summit’s format is simple and designed to take no more than one hour. over a boxed lunch (or bring your own brown bag) in a meeting room away from the courthouses, state and federal judges will hear several five-minute presentations from pro bono providers/coordinators on what population those organizations serve and in what subject matters. the judges will also hear a brief presentation on behalf of the florida Bar foundation on how to become a foundation “fellow.” And the judges will get some tips on special accommodations they may make for pro bono attorneys. once the presentations are concluded, the guest presenters will be excused, and then the judges will end with an open brainstorming session on other ways judges can be involved in pro bono activities. the committee will distribute to the judges a handbook-style compilation of useful resources, including referral information for legal services providers in the area, so that these resources will be within arm’s reach on the bench. the materials will also include ways a judge may participate in pro bono.
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triAL & LitigAtioN seCtioN sCHoLArsHiP-wiNNiNg essAY Trial & Litigation Section Chair: John Schifino - Burr & Forman
jurisprudence. is unpredictable, First, that trials, only revolutionary a fair trial must be and jury trials in unpredictable. All particular, are lawyers could have the frustratingly inefficient, founded a government incalculable unpredictable, variables — and expensive. made of equal parts the biases, the Second, the radical political theory emotions, the factors that make and traditional sensitivity to initial jury trials rare conditions — meld also explain why common law. together into the Each year, the Trial & Litigation they still exist — emergent property Section awards a scholarship to the jury trials are the called legitimacy. law student who submits an article best way to solve Jury trials are that best addresses an important issue our most intractable disputes. important because they are facing our adversary system. This year, In 1787 — a time when physicians sometimes at odds with the will of we asked students to answer the treated illnesses by bleeding their those in power. And yet, jury trials following: “I believe that jury trials are patients, physicists argued about serve to vindicate just authority. important to American Jurisprudence aether, and information traveled A government that can enforce any because ...” We’re pleased to present a only as fast as horses could carry it edict it desires, without limitation, very thoughtful article by Sienna Osta, — a handful of American lawyers is a tyranny. A government that a third-year law student at Cooley helped draft the fundamental rules must convince a statistical sample Law School and our 2014-2015 for the most powerful government of the community that its laws scholarship winner. in history. are just, both in theory and in Only revolutionary lawyers could application, is constitutional. *** have founded a government made In civil matters, a public jury of equal parts radical political theory trial can actually be a powerful ury trials are important to and traditional common law. panacea for future litigation. American jurisprudence The protection of jury trials by A corporation that can foist because they are so rare. the Bill of rights is among the operational costs and liabilities on readers of the Lawyer most illustrative examples of our society is a parasite. A corporation magazineJ will not be surprised Constitution’s synthesis of egalitar - that successfully defends against by the following trends: ianism and establishmentarianism. allegations of negligence, • During the 1970s, about Yet the ideology of trial avoidance corruption, and greed is a citizen. 15 percent of criminal and has become institutionalized Jury trials are important to 8 percent of civil cases went throughout the legal community. American jurisprudence because to trial. In 2010, trials Legislators, judges, attorneys, and they are the difference between accounted for only 2 percent even clients seem to share the same democracy and totalitarianism. of criminal and 1 percent of mentality — trials are just too risky. They are important because we civil dispositions. But the laudable desire for increased have yet to devise a fairer way to • From 1991 to 2010, the number economy, predictability, and resolve our disputes. They are of civil jury trials declined by uniformity can be taken a step too important because they are not almost 60 percent. far. The risks inherent in a fair trial yet dead. • Among U.S. district courts in are a feature, not a bug. 2010, trials accounted for less As the most democratic element Author: than 3 percent of all tort, of an increasingly stratified and Sienna Osta - contract, and intellectual bureaucratic system, trials lend Western Michigan property dispositions. credibility to adjudicative decisions University - The rarity of trials reveals two in a way that mechanical determi - Cooley Law School, important things about American nations cannot. Just as a fair election Class of 2015
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ASK-A-LAWYER SET UNDER CONSTRUCTION
the panelists from our Lawyer referral & information service took a break from their early-morning fox 13 appearances over the summer while the tv set was being remodeled, but the camaraderie continued with a collegial breakfast at the Bar. Lris director Lupe mitcham cooked a homemade breakfast for the group, and everyone took some time away from the phones to get to know each other a little better.
If you’d like to join lrIS, call lupe at (813) 221-7780.
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Big tHiNgs to Come tHis YeAr Workers’ Compensation Section Chairs: Anthony V. Cortese - Anthony V. Cortese, Attorney at Law; and Irene M. Rodriguez - Irene M. Rodriguez, PA
a minimum that litigant is entitled the court conduct “[w]e do not believe to carte blanche an in-camera irrelevant discovery.” inspection of that a litigant is Appellate cases the file before entitled to carte before the Florida requiring Supreme Court will disclosure. The blanche irrelevant dramatically affect Second District discovery.” the practice both in agreed and terms of indemnity directed that benefits, Westphal v. the lower court City of St. Petersburg, his year, we will have conduct an in-camera inspection 122 So. 3d 440 (Fla. 1st DCA 2013) speakers presenting and segregate any private cert. granted, and in terms of seminars addressing documents that were not relevant attorney fee awards, Castellanos v. dramatic changes to Mueller’s negligence action from Next Door, 124 So. 3d 392 (Fla. 1st and issues in state workers’ the relevant documents. DCA 2014), cert. granted. There compensationT law, on immunity An earlier decision on social are also medical procedures that issues, on methods of medical media was announced in Root v. are becoming mainstream, such as treatment, and on unprecedented Balfour Beatty Construction, 132 minimally invasive spine surgery changes to the rules governing the So. 3d 867 (Fla. 2d DCA 2014). and stem-cell injection procedures Longshore and Harbor Workers’ In that case, a 3-year-old child for the knee and shoulder. The Compensation Act and Defense was struck by a vehicle. During importance of tort remedies Base Act. Watch your email, this discovery, the trial court ordered available to injured workers was magazine, and the HCBA Weekly the child’s mother to produce illustrated by a favorable jury Update for dates and times. In the Facebook material relating to verdict for a plaintiff earlier this meantime, discovery limits have her relationship with all of her year in Robert Matthews v. Mosaic been hot topics. children, not just the injured Fertilizer, Case no. 10-CA-009268 The most recent relevant 3-year-old, and with other family Circuit Court, Hillsborough County, discovery decision came from members, boyfriends, husbands, FL (verdict docketed on March 30, the Second District in Mueller v. and/or significant others, both 2015.) The Longshore and Defense Wal-Mart Stores, 164 So. 3d before and after the accident. Base Act rules of Procedure were (Fla. 2d DCA 2015). The claimant, There was no temporal limitation dramatically revised this year and who was hit by a truck, filed a on the production. The Second will have a major impact on that negligence claim in 2012 and District overturned the trial court, practice. We will offer seminars objected to a discovery order noting that this was the kind of and speakers on each of these compelling release of his entire “carte blanche” discovery that the topics this coming year. We hope military file after an honorable Florida Supreme Court warned to see you then. discharge in 1993. The claimant against in Allstate Insurance v. argued this was an invasion of his Langston, 655 So. 2d 91, 95 (Fla. Author: Anthony V. Cortese - Anthony right to privacy and requested at 1995). “[W]e do not believe that a V. Cortese, Attorney at Law
HCBA members receive discounts on room rentals at the Chester H. ferguson law Center. Call (813) 221-7777 for more information.
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AroUNd tHe AssoCiAtioN
Jolyon D. Acosta, a is a young professional leadership Kirkwood Long & Koche shareholder at Bush Ross, was program of the Greater Tampa Attorneys at Law as a partner. recently accepted into the Florida Chamber of Commerce designed Johnson has more than three Fellows Institute. Acosta’s practice for emerging leaders ages 21 to 35. decades of experience serving focuses on federal and state taxation; clients with complex issues related corporate law; partnership law; and Leonardo M. Dosoretz and to buying and selling real estate wills, trusts, estate planning, and Erin M. McKenney, associates and businesses, banking law, estate administration. in the Tampa office of Shumaker, construction matters, land use and Loop & Kendrick, LLP, have development, and estate planning. Retired Judge James M. graduated from Tampa Connection. Barton II has been reappointed The Tampa Connection program Andrew R. Lincoln has joined for a three-year term on the board helps guide executives into key the law firm of Jackson Lewis, of directors for The Florida Bar leadership roles while helping to P.C., in the Tampa office as an Foundation. The foundation is a meet Tampa’s growing social, health, associate. Lincoln concentrates statewide charitable organization and education needs. Its mission is his practice on wage and hour whose mission is to provide greater to prepare class members to become compliance, FLSA litigation, and access to justice. active volunteers and leaders in the collective/class actions. He also Tampa Bay community. represents management in matters Gregory P. Brown, a related to labor relations and shareholder in the litigation group Jeffrey P. Greenberg has employment law. of Hill Ward Henderson, P.A., become of counsel to the firm has been reappointed to a three- Barnett Bolt Kirkwood Long Sheada Madani has joined year term on the board of directors & Koche Attorneys at Law. the firm Barnett Bolt Kirkwood for The Florida Bar Foundation. Greenberg has more than 25 years’ Long & Koche Attorneys at experience in health care and Law as an associate attorney. Adam B. Cordover celebrated corporate transactional and Madani practices transactional real his law firm’s fifth anniversary regulatory matters, including estate, banking, and corporate law. in July and changed its name acquisitions and divestitures, federal to Family Diplomacy: A and state licensure, and compliance. Monica Mason has joined the Collaborative Law Firm. law firm of Trenam Kemker as Family Diplomacy offers exclusively Thomas Newcomb Hyde Senior Counsel and will practice in out-of-court dispute resolution presented “resolving Professionalism the Business Transactions Group. Her services, including collaborative Complaints” to students and faculty practice will focus on intellectual family law, mediation, and of Western Michigan University – property law with a specific focus unbundled legal services. Cooley Law School on behalf of on company representation in the Thirteenth Judicial Circuit’s trademark, copyright, and domain Kacy Donlon, a founding Professionalism Committee. name matters. shareholder of the Tampa-based law firm Wiand Guerra King, Richard A. Jacobson, a William “Bert” McBride of was named The Florida Bar shareholder with Buchanan Trenam Kemker completed the Business Law Section’s Outstanding Ingersoll & Rooney, has been new Leaders Council Institute Member of the Year at the Bar’s appointed to the International (nLC) program and is an nLC annual meeting in Boca raton. Taxation Committee of the Florida Fellow. The nLC Institute is a Institute of CPAs. Jacobson is a premier leadership and professional Leonardo M. Dosoretz of certified public accountant who is development, training, mentoring, the law firm Shumaker, Loop also board-certified by The Florida networking, and career and political & Kendrick, LLP, has been Bar in International Law. advancement program for young appointed chair of the Public professionals. An intense, five-month Policy Committee of Emerge Leonard H. Johnson has Tampa Bay. Emerge Tampa Bay joined the firm Barnett Bolt Continued on page 77
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AroUNd tHe AssoCiAtioN
Continued from page 76
progressive entrepreneurship training program, the nLC Institute is highly selective, admitting only 15 to 20 fellows.
Mac R. McCoy, a shareholder in the Tampa office of Carlton Fields Jorden Burt, has been appointed a United States magistrate judge for the Fort Myers Division of the Middle District of Florida.
Steven Mezer has joined the law firm of Becker & Poliakoff as a shareholder in the Community Association Law Practice Group at its Tampa office. Mezer has focused his practice during the past three decades on representing community associations and their boards of directors and will continue to serve as counsel to community association clients in the Tampa Bay area.
Woodrow H. “Woody” Pollack, a shareholder in the Tampa office of GrayRobinson, has been appointed chair of The Florida Bar’s Business Law Section’s Intellectual Property Committee. Pollack was previously vice chair.
Steven C. Pratico has joined the firm Barnett Bolt Kirkwood Long & Koche Attorneys at Law as a partner. Pratico handles all manner of commercial litigation, including contract and other commercial disputes, employment issues, and real estate disputes.
Jennifer G. Roeper of Shumaker, Loop & Kendrick, LLP, has been reappointed to serve
Continued on page 78
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AroUNd tHe AssoCiAtioN CLAssified AdvertisiNg
Continued from page 77 Lavern Wilson of VOCATIONAL- FordHarrison LLP has passed PSYCHOLOGICAL SERVICES: on The Florida Bar Immigration The Florida Bar Board Certification Full service human resource agency & nationality Board Certification for Labor & Employment Law. that provides assessments and Committee for a three-year term. Approximately 4,700 of Florida’s expert testimony. Vocational-post This committee is responsible 100,000 lawyers are board-certified, injury-Earning Capacity and Lost for peer reviewing and certifying and only 200 of them are certified Earning Analysis. Post-Divorce- attorneys who meet rigorous in Labor & Employment Law. Employability; Workman standards of excellence in the Compensation and Mental field of Immigration & nationality Akerman LLP has received Capacity Evaluations offered with Law. roeper is co-chair of the the “I Am for the Child” award, in-depth analysis of unique case immigration practice group and the highest recognition by the points. Serving central Florida is certified by The Florida Bar in Florida Statewide Guardian ad over 25 years-Expert testimony. Immigration & nationality Law. Litem (GAL) Program. Akerman ABVE/ diplomate DOH licensure. was honored for its commitment www.FerraraAssociates.com Murray Silverstein of to promote volunteer advocacy for 877-669-0303. Greenberg Traurig, P.A., has at-risk youth in the courtroom and been appointed to the board of community. Akerman is the first TO SUBMIT YOUR directors of The Florida Bar law firm to partner nationally with CLASSIFIEDAD, email Corrie Foundation. Silverstein focuses his the national Court-Appointed Benfield at [email protected]. practice on commercial litigation Special Advocate Association and $100 for 50 or fewer words, and and class actions. its local GAL programs. $2 per word for each word over 50.
for more HCBA news, go to www.facebook.com/HCBAtampabay. To submit news for Around the Association, email Corrie Benfield at [email protected].
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JUrY triAL iNformAtioN
For the month of: June 2015 Nature of case: negligence Scheele and Thomas Kane Jr. Judge: Hon. Bernard C. Silver Verdict: $8,000,000 Nature of case: Admitted- Parties: Sheryl Scott-Duns as liability case with surgeries to Pr for the estate of Justin Scott- For the month of: July 2015 plaintiff ’s knee and spine Duns v. Life Concepts, Inc., d/b/a Judge: Hon. Walter Schafer Verdict: Defense verdict, Quest, Inc. a/k/a Quest’s Adult Parties: roderick Fields v. $4,747.16 (Er bill), resulting in Day Training Center Keisha L. James and Louis r. zero verdict. Motion to enforce Attorneys: For plaintiff: Henry Goeltzenleuchter defendants’ proposal for settlement E. Valenzuela; for defendant: Attorneys: For plaintiff: is pending. Mike McCahill Jay Dinan; for defendant: Brandon
To submit news for Jury Trial Information, email [email protected].
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